'1. The accused person herein, Idris Juma Shame alias Lagwanja, was charged with the offence of murder contrary to Section 203 as read with Section 204 of the Penal Code (Cap. 63) Laws of Kenya that on 12th December 2022 at Kombani stage within Matuga Sub-County in Kwale County jointly with others not before court murdered Rashid Nassir Kilanga.
2. The accused person pleaded not guilty to the charge and the case was set down for hearing.
3. The prosecution case was heard and concluded by my sister Hon. Lady Justice Anne Ong’ijo. I took over when the court had made a ruling on case to answer that the accused had a case to answer. The accused person opted to have the case to proceed from where Hon. Lady Justice Anne Ong’ijo had left it. He gave sworn evidence in defence and did not call a witness.
4. The prosecution called ten witnesses to support the charge.
5. PW 1, Salim Nassir Kilanga, was an eye witness to the offence. He said the deceased was his brother. He testified that the incident took place at around 4.00 p.m. He testified that he saw the accused person who was well known to him by his name and the alias of Lagwanja, in a group of 60-70 people who ware baying for his brother, looking for him around their home. They attacked the deceased and cut him with pangas. He said the accused person’s sister was married to PW 1’ uncle. The same accused person also pelted PW 1 with a stone. After the attack PW 1 and his father Nassir Kilanga and uncle Muhammed Kilanga but the deceased died before they reached hospital.
6. PW 2, Idris Musa Kassim said that on the same evening at around 6.00 p.m. he was coming from work at Kombeni while carrying a laptop back with an HP laptop inside. He also had a smartphone Techno Camon 16 phoneshe met a group of about 60 boys at Kwa Ganzala area at the borehole area. They were armed with machetes, stones, long sticks (which he referred to as hockey sticks) and catapults. He greeted them and while in the middle of it, they attacked him. One of them wanted to take his phones and he resisted. The accused person who was well known to him by his proper name and nickname took his bag while another took his wallet. He was cut on the arm. They hit him on the elbows with the sticks. PW 2 said that the group of young men were shouting the name of the deceased, Rashid. A neigbour who heard the commotion opened his house and PW 2 ran inside.
7. He left afterwards and went to report at Kombani police station. On his way there, he informed the deceased that there were people who wanted to kill him. After he had made the report, in about ten, he received the information that the deceased had been killed at the bus stage.
8. PW 3, PC Mohammed Rashid Kilanga of DCI Turkana East Sub-County was home at Kombani for the burial of a kinsman when the incident happened. He was coming from the burial with one Salim Mohammed Yunis when they heard noises coming from the direction of their home. They got information that their home had been attacked by a group of about 30-50 youths. When they reached home, the youths had moved. There was a football match at the pitch where they were informed the youths had headed. He, however, found them some 50 to 60 meters away. He went to the bus stage with one Said Barusi. They met Rashid, the deceased, and told him to take care. They moved to another stage towards Mombasa. In a short while, he heard a commotion, and Barusi went and informed him that Rashid was being killed. He rushed there and saw some boys with pangas. The deceased had been cut and had eleven cut wounds on his body. Accompanied by a clinical officer, one Juma, they took the deceased from the scene to a clinic. However, on the way, Juma declared him dead.
9. PW 4, Cpl Paul Buluma of DCI Kwale, was among the police officers who arrested the accused person from his residence on 27th January 2023 at around 3.00 a.m. There was also another person who was arrested the same night elsewhere. PW 4 said this person was later released.
10. PW 5, PC Julius Zulu of Matuga DCI office was in the company of PW 4 during the arrest of the accused person.
11. PW 6, Dr. Paul Gathuma a medical officer at Kwale hospital conducted a post mortem on the body of the deceased on 13th December 2022. He said the deceased had deep cut wounds on the head and legs and hands. He had open skull fractures. He found the cause of death to be severe head injury caused by sharp object. Internal examination of the body was not done due to religious beliefs.
12. PW 7, Nassir Rashid Kilanga is the father of the deceased. He was at Kombani market when he received the information that he had been attacked and cut. He went to see him at 002 hospital and they were advised to take him to Msambweni hospital. He died on the way there.
13. PW 8, Maulid Salim Fondo said they were at home at Kombeni playing Indo with other young men when the assailants armed with machetes and hockey sticks went there. One of them, Yahya, asked the ones playing for peace to pass and they allowed them. The group that had come by had panagas that had blood stains. PW 8 identified among them Mujuma, Yahya and Idris, the accused person. One of the young men in that group raised his panga and told those who had given way that they had finished with one. They went their way. Shortly after, a boda boda rider came by and informed those who were playing that the gang that had passed there had killed their brother Rashid Mohammed Kilanga. PW 8 rushed to the scene and then to the hospital where the deceased was lying with deep cut wounds. He could not stomach the sight as he appeared scary. He went home to rest.
14. In cross-examination, PW 8 said that he had not recorded the name Idris in his statement. He however said that he had only answered the questions that he had been asked but that he saw the accused in the gang.
15. PW 9, Rashid Mohammed Kilanga is a brother of the deceased. On the material day, he was with PW 8 and about ten others Mohamed Salim, Ibrahim Wema, Suleiman Mwarafiri. Mwinyi Kilanga, Abdul Muzela, Maulid Salim, Ismael Mwarafiri. Abdulrazak Nduza, Abdulrahman Nduza and Suleiman Kizaru. The youths with weapons passed by the road where they were resting. One of the gang members Yahya Mbefu went to those who were seated while wielding a panga and addressed PW 9, telling him that they wanted peace. PW 9 spoke back to him. The rest of the evidence was what PW 8 said.
16. PW 9 said that the accused person was not known to him before as he had never interacted with him but said that he was with Yahya. He told the court that Yahya was naming the people he was with and that he saw the accused on that day.
17. In cross-examination, PW 9 said that he did not name the accused person in his statement.
18. PW 10, PC Allan Muriithi was the investigating officer in the case.
19. The accused person was put on his defence after a finding that there was sufficient evidence adduced by the prosecution making out a prima facie case against him. The accused person gave sworn evidence and called one witness, DW 2, Amadi Mohammed Buku.
20. The accused person denied that he committed the offence. He said that on the date of the incident, he was at Maganyakulu waiting for a body for burial when he heard information that an attack by a mob had occurred at Kombani. He was in the process of cleaning the house where the body they were waiting for would be placed. They went on with what they were doing. He was later arrested at his home on 27th January 2023.
21. In cross-examination, he said that he had written the name Lagwanja on his motorcycle. He said that the deceased was known to him.
22. DW 2 said he was with the accused and one Hamisi Mwadena at their (DW 2’s home from around 3.00 p.m. on the material day, waiting for the body of his nephew. They stayed together until 9.00 p.m. They received information from the village chairman that an accident had happened at Kombani, where children had cut one another with pangas.
23. DW 2 said that the accused person was later arrested with Hamisi, who was later released.
24. Before he took a plea, a mental assessment report was prepared by one Dr. Janbibi Y. Mohammed, M.Med., a consultant psychiatrist/DDMS, dated 5th April, who declared that the accused person had no mental illness and therefore was fit to plead to the charges.
25. Learned counsel for the accused person made brief submissions that there was no evidence to balance against the specific charge levelled against the accused person to support the charge, and therefore the accused person should be acquitted. Learned counsel for the prosecution did not make submissions.
26. I have considered the evidence of the ten (10) prosecution witnesses, the defence by the accused person, and the submissions by learned counsel for the accused person. The point for determination is whether or not the prosecution has proved a case of murder against the accused person beyond a reasonable doubt.
27. The offence of murder is provided for under section 203 of the Penal Code as follows:
“S. 203. Any person who of malice aforethought causes the death of another person by an unlawful act or omission is guilty of murder.”
28. In the case of Anthony Ndegwa Ngari v Republic [2014] KECA 424 (KLR) the Court of Appeal said thus regarding the ingredients of the offence of murder:
“For the offence of murder, there are three elements which the prosecution must prove beyond reasonable doubt in order to secure a conviction. They are: (a) the death of the deceased and the cause of that death; (b) that the accused committed the unlawful act which caused the death of the deceased and (c) that the Accused had the malice aforethought. (See Nyambura & Others-vs-Republic, [2001] KLR 355).”
29. In this case, the prosecution''s evidence is that the deceased was attacked and cut with pangas by a gang of youths. PW 1 testified about what he saw on the material day in the evening in relation to the deceased. He testified that the deceased was attacked and cut with pangas by a gang of youths. Other witnesses, namely PW 3, PW 7, PW 8, and PW 9, also saw the deceased shortly after the attack and testified that he had multiple deep cuts on his body and was profusely bleeding. He died on the way to the hospital.
30. The post-mortem examination of the body of the deceased by PW 6, showed that the deceased died from multiple deep cut wounds to his head, hands, and legs caused by a sharp object. This corroborates the evidence of PW 1, the gang of youths cut the deceased with pangas. No doubt, the death was caused by the unlawful acts of members of the gang in cutting him with pangas.
31. Evidence from the testimonies of the prosecution witnesses leads to the conclusion that the gang that confronted PW 2 on his way from work was the same gang that PW 1 heard baying for the deceased’s blood and the same one that attacked and killed the deceased by cutting him with pangas. When PW 2 encountered them, the gang was calling out for the name of the deceased, Rashid, as the one they were looking for, and indeed, PW 1 heard them saying the same thing, and shortly afterwards, he saw them cutting him with the pangas that they had. I find that this is direct evidence of the cause of death of the deceased arising from an unlawful act.
32. In conclusion on the first ingredient of murder, that of actus reus, I am satisfied that it was indeed the act of being assaulted with pangas that caused severe injuries to the deceased, thereby leading to his death.
33. The next issue for determination is whether the prosecution has proved malice aforethought against the accused person.
34. Section 206 of the Penal Code provides for the instances under which malice aforethought is deemed established thus:
“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.”
35. From the evidence on record, it is apparent that the circumstances of the offence fall under section 206 (a), (b) and (c) of the Penal Code where malice aforethought is deemed to be established where the evidence adduced establishes that there was an intention to cause the death of or to do grievous harm to any person, whether, knowledge that the act or omission causing death will probably cause the death of or grievous harm to some person, and an intent to cause a felony.
36. The issue then is whether the evidence establishes the requisite mens rea on the part of the accused person.
37. On this ingredient of malice aforethought, the Court of Appeal, in the case of Bonaya Tutu Ipu & another v Republic [2015] KECA 335 (KLR) held thus:
“It is in rare circumstances that the intention to cause death is proved by direct evidence. More frequently, that intention is established by or inferred from the surrounding circumstances. In the persuasive decision of CHESAKIT V. UGANDA, CR. APP. NO. 95 OF 2004, the Court of Appeal of Uganda stated that in determining in a charge of murder whether malice aforethought has been proved, the court must take into account factors such as the part of the body injured, the type of weapon used, if any, the type of injuries inflicted upon the deceased and the subsequent conduct of the accused person. Earlier in REX V. TUBERE S/O OCHEN (1945) 12 EACA 63, the former Court of Appeal for Eastern Africa stated thus on the issue:
“It (the court) has a duty to perform in considering the weapon used and the part of the body injured, in arriving at a conclusion as to whether malice aforethought has been established, and it will be obvious that ordinarily an inference of malice will flow more readily from the case, say, of a spear or knife than from the use of a stick…”
38. In the present case, evidence that the deceased was attacked by a gang that was wielding weapons, namely pangas, sticks, and stones, which they used upon him, leads to no other conclusion than that they intended to cause death or grievous bodily harm to him.
39. In this case, the deceased was cut multiple times with pangas by a gang. The gang had been baying for his blood before they attacked him. After the attack, the gang members were heard boasting that they had killed him as a sign that they were demanding peace from whoever they meant.
40. I am satisfied from those actions that the intent to commit murder has been proved beyond any reasonable doubt. I find that malice aforethought has been established in terms of Section 206 (a) and (b) of the Penal Code.
41. The final issue is whether both mens rea and malice aforethought have been established against the accused person.
42. This court is aware that before relying on the evidence of identification as the basis for the conviction of an accused person, care should be taken to ensure that the same is watertight, especially where the circumstances were difficult and where the accused person was identified as the perpetrator. This was the position as held in the case of Wamunga v Republic [1989] KECA 47 (KLR) at 426, where the Court of Appeal said:
“Where the only evidence against a defendant was evidence of identification or recognition, a trial court was enjoined to examine such evidence carefully and to be satisfied that the circumstances of identification were favourable and free from possibility of error before it could safely make it the basis of a conviction.
43. The Court explained further that:
“What we have to decide now is whether that evidence was reliable and free from possibility of error so as to find a secure basis for the conviction of the appellant. Evidence of visual identification in criminal cases can bring about miscarriage of justice and it is of vital importance that such evidence is examined carefully to minimize this danger.
Whenever the case against a defendant depends wholly or to a great extent on the correctness of one or more identifications of the accused which he alleges to be mistaken the court must warn itself of the special need for caution before convicting the defendant in reliance on the correctness of the identification.”
44. PW 1 testified that the deceased was attacked and cut with pangas by a group of youths, among them the accused person, who was well known to him. He had earlier heard them shouting the deceased’s name, saying that they were looking for him and wanted to finish with him. PW 1 testified that he followed the group to identify those he knew and he was able to pick out Yahya and the accused person.
45. PW 2 identified the accused person as being among a group of youths who attacked him on his way from work, just around the same time that the deceased was attacked and cut with pangas, at 6.00 p.m. on 12th December 2022. They were shouting the name of the deceased, Rashid. The accused person took PW 2’s bag, and the youths set upon beating him until he ran away. Shortly afterwards, he learnt that the deceased had been attacked and badly cut by a gang of youths, and he later succumbed to the injuries. I am satisfied that PW 2 had a close-up opportunity with and did identify the accused person, who was known to him before.
46. PW 8 and PW 9, who were together the same evening, also encountered the gang of youths immediately after the deceased had been cut. The youths were carrying blood-stained pangas. PW 8 and PW 9 identified the accused person and Idris among the gang of youths. PW 8 said that the accused person was well known to him. Idris addressed the group, in which PW 7, and PW 8 were present, and told them that they were demanding peace, and also said that they had finished with one of them. It turned out shortly afterwards that when Idris was saying that they had finished with one of them, in fact, the gang of youths had killed the deceased by cutting him with pangas.
47. In the present case, the accused person was identified from a group of between 50 and 60 youths, as testified by the prosecution witnesses herein. There is no doubt that the situation was tense and scary as the youths were many and armed with pangas, among other weapons. However, PW 1, PW 2, and PW 8 each said that the accused person was known to them, and the accused person conceded that indeed he was related to them. They come from the same area, and they interact with one another often. The incident took place in broad daylight, and there was no indication that there could have been any difficulty in identifying him. In the case of PW 2, the accused person confronted him and took his bag. PW 2, therefore, saw him at close range.
48. Therefore, the identification of the accused person in this case was not of a stranger but by way of recognition of a person well known to the witnesses, PW 1, PW 2, and PW 8. He was not the only one identified. The witnesses were able to identify Idris, Mejuma, and the accused person. I have no reason to doubt their evidence.
49. None of the witnesses saw the accused person cut the deceased with a panga. The available evidence is that he was among the gang members. He was in the company of about 50 to 60 other people when they attacked and cut the deceased. The issue that arises is whether, under those circumstances, the accused person can be considered as having had a common intention with the other gang members to kill the deceased.
50. Section 21 of the Penal Code (Cap. 63) Laws of Kenya provides with respect to joint offenders in prosecution of a common purpose that:
“When two or more persons form a common intention to prosecute an unlawful purpose in conjunction with one another, and in the prosecution of such purpose an offence is committed of such a nature that its commission was a probable consequence of the prosecution of such purpose, each of them is deemed to have committed the offence.”
51. The Court of Appeal considered the definition of common intention in the case of Dickson Mwangi Munene & another v Republic [2014] KECA 774 (KLR) and held that:
“The law is well settled on the definition and in what circumstances common intention can be inferred if it is not express or obvious. Common intention is deduced where there are two or more parties that intend to pursue or to further an unlawful object or a lawful object by unlawful means and so act or express themselves as to reveal such intention. It implies a pre-arranged plan. Although common intention can develop in the course of the commission of an offence, it is normally anterior in point of time to the commission of the crime showing a pre-meditated plan to act in concert. It comes into being, in point of time, prior to the commission of the act.”
52. While considering the principle of common intention in relation to murder the court in the case of Njoroge versus Republic [1983] KLR 197, 204 held inter alia, that:-
“if several persons combine for an unlawful purpose and one of them in the prosecution of it kills a man, it is murder in all who are present whether they actually aided or abetted or not, provided that the death was caused by the act of someone of the party in the course of his endeavours to effect the common object of the assembly”
53. In Republic versus Tabulayenka S/O Kirya [1943] EACA 51 the Court of Appeal for Eastern Africa laid down the following principle with regard to common intention;-
“The common intention may be inferred from their presence, their actions and the omission of either of them to disassociate himself from the assault.”
54. In the present case, there is evidence that the accused person was present and he never dissociated himself from the acts of those who were assaulting the deceased in any way. I am satisfied that he supported these acts and was therefore a participant therein. I find that he had a common intention with the other gang members to kill the deceased or cause him grievous harm.
55. I am satisfied from the evidence tendered that the prosecution has discharged its burden to prove beyond a reasonable doubt that the accused person, together with others, murdered Rashid Nassir Kilanga, the deceased herein. Consequently, I find the accused person guilty of the offence of murder contrary to section 203 as read with section 204 of the Penal Code. He is hereby convicted accordingly.
56. Orders accordingly.
Judgment dated, signed and delivered in Open Court this 29th day of September 2025.
HON. ANDAYI W. F.
JUDGE
In the presence of: -
The accused persons present in court.
Okuthe for the accused person.
Ms Vallerie for the State.
Ummu - Court Assistant
'
2. The accused person pleaded not guilty to the charge and the case was set down for hearing.
3. The prosecution case was heard and concluded by my sister Hon. Lady Justice Anne Ong’ijo. I took over when the court had made a ruling on case to answer that the accused had a case to answer. The accused person opted to have the case to proceed from where Hon. Lady Justice Anne Ong’ijo had left it. He gave sworn evidence in defence and did not call a witness.
4. The prosecution called ten witnesses to support the charge.
5. PW 1, Salim Nassir Kilanga, was an eye witness to the offence. He said the deceased was his brother. He testified that the incident took place at around 4.00 p.m. He testified that he saw the accused person who was well known to him by his name and the alias of Lagwanja, in a group of 60-70 people who ware baying for his brother, looking for him around their home. They attacked the deceased and cut him with pangas. He said the accused person’s sister was married to PW 1’ uncle. The same accused person also pelted PW 1 with a stone. After the attack PW 1 and his father Nassir Kilanga and uncle Muhammed Kilanga but the deceased died before they reached hospital.
6. PW 2, Idris Musa Kassim said that on the same evening at around 6.00 p.m. he was coming from work at Kombeni while carrying a laptop back with an HP laptop inside. He also had a smartphone Techno Camon 16 phoneshe met a group of about 60 boys at Kwa Ganzala area at the borehole area. They were armed with machetes, stones, long sticks (which he referred to as hockey sticks) and catapults. He greeted them and while in the middle of it, they attacked him. One of them wanted to take his phones and he resisted. The accused person who was well known to him by his proper name and nickname took his bag while another took his wallet. He was cut on the arm. They hit him on the elbows with the sticks. PW 2 said that the group of young men were shouting the name of the deceased, Rashid. A neigbour who heard the commotion opened his house and PW 2 ran inside.
7. He left afterwards and went to report at Kombani police station. On his way there, he informed the deceased that there were people who wanted to kill him. After he had made the report, in about ten, he received the information that the deceased had been killed at the bus stage.
8. PW 3, PC Mohammed Rashid Kilanga of DCI Turkana East Sub-County was home at Kombani for the burial of a kinsman when the incident happened. He was coming from the burial with one Salim Mohammed Yunis when they heard noises coming from the direction of their home. They got information that their home had been attacked by a group of about 30-50 youths. When they reached home, the youths had moved. There was a football match at the pitch where they were informed the youths had headed. He, however, found them some 50 to 60 meters away. He went to the bus stage with one Said Barusi. They met Rashid, the deceased, and told him to take care. They moved to another stage towards Mombasa. In a short while, he heard a commotion, and Barusi went and informed him that Rashid was being killed. He rushed there and saw some boys with pangas. The deceased had been cut and had eleven cut wounds on his body. Accompanied by a clinical officer, one Juma, they took the deceased from the scene to a clinic. However, on the way, Juma declared him dead.
9. PW 4, Cpl Paul Buluma of DCI Kwale, was among the police officers who arrested the accused person from his residence on 27th January 2023 at around 3.00 a.m. There was also another person who was arrested the same night elsewhere. PW 4 said this person was later released.
10. PW 5, PC Julius Zulu of Matuga DCI office was in the company of PW 4 during the arrest of the accused person.
11. PW 6, Dr. Paul Gathuma a medical officer at Kwale hospital conducted a post mortem on the body of the deceased on 13th December 2022. He said the deceased had deep cut wounds on the head and legs and hands. He had open skull fractures. He found the cause of death to be severe head injury caused by sharp object. Internal examination of the body was not done due to religious beliefs.
12. PW 7, Nassir Rashid Kilanga is the father of the deceased. He was at Kombani market when he received the information that he had been attacked and cut. He went to see him at 002 hospital and they were advised to take him to Msambweni hospital. He died on the way there.
13. PW 8, Maulid Salim Fondo said they were at home at Kombeni playing Indo with other young men when the assailants armed with machetes and hockey sticks went there. One of them, Yahya, asked the ones playing for peace to pass and they allowed them. The group that had come by had panagas that had blood stains. PW 8 identified among them Mujuma, Yahya and Idris, the accused person. One of the young men in that group raised his panga and told those who had given way that they had finished with one. They went their way. Shortly after, a boda boda rider came by and informed those who were playing that the gang that had passed there had killed their brother Rashid Mohammed Kilanga. PW 8 rushed to the scene and then to the hospital where the deceased was lying with deep cut wounds. He could not stomach the sight as he appeared scary. He went home to rest.
14. In cross-examination, PW 8 said that he had not recorded the name Idris in his statement. He however said that he had only answered the questions that he had been asked but that he saw the accused in the gang.
15. PW 9, Rashid Mohammed Kilanga is a brother of the deceased. On the material day, he was with PW 8 and about ten others Mohamed Salim, Ibrahim Wema, Suleiman Mwarafiri. Mwinyi Kilanga, Abdul Muzela, Maulid Salim, Ismael Mwarafiri. Abdulrazak Nduza, Abdulrahman Nduza and Suleiman Kizaru. The youths with weapons passed by the road where they were resting. One of the gang members Yahya Mbefu went to those who were seated while wielding a panga and addressed PW 9, telling him that they wanted peace. PW 9 spoke back to him. The rest of the evidence was what PW 8 said.
16. PW 9 said that the accused person was not known to him before as he had never interacted with him but said that he was with Yahya. He told the court that Yahya was naming the people he was with and that he saw the accused on that day.
17. In cross-examination, PW 9 said that he did not name the accused person in his statement.
18. PW 10, PC Allan Muriithi was the investigating officer in the case.
19. The accused person was put on his defence after a finding that there was sufficient evidence adduced by the prosecution making out a prima facie case against him. The accused person gave sworn evidence and called one witness, DW 2, Amadi Mohammed Buku.
20. The accused person denied that he committed the offence. He said that on the date of the incident, he was at Maganyakulu waiting for a body for burial when he heard information that an attack by a mob had occurred at Kombani. He was in the process of cleaning the house where the body they were waiting for would be placed. They went on with what they were doing. He was later arrested at his home on 27th January 2023.
21. In cross-examination, he said that he had written the name Lagwanja on his motorcycle. He said that the deceased was known to him.
22. DW 2 said he was with the accused and one Hamisi Mwadena at their (DW 2’s home from around 3.00 p.m. on the material day, waiting for the body of his nephew. They stayed together until 9.00 p.m. They received information from the village chairman that an accident had happened at Kombani, where children had cut one another with pangas.
23. DW 2 said that the accused person was later arrested with Hamisi, who was later released.
24. Before he took a plea, a mental assessment report was prepared by one Dr. Janbibi Y. Mohammed, M.Med., a consultant psychiatrist/DDMS, dated 5th April, who declared that the accused person had no mental illness and therefore was fit to plead to the charges.
25. Learned counsel for the accused person made brief submissions that there was no evidence to balance against the specific charge levelled against the accused person to support the charge, and therefore the accused person should be acquitted. Learned counsel for the prosecution did not make submissions.
26. I have considered the evidence of the ten (10) prosecution witnesses, the defence by the accused person, and the submissions by learned counsel for the accused person. The point for determination is whether or not the prosecution has proved a case of murder against the accused person beyond a reasonable doubt.
27. The offence of murder is provided for under section 203 of the Penal Code as follows:
“S. 203. Any person who of malice aforethought causes the death of another person by an unlawful act or omission is guilty of murder.”
28. In the case of Anthony Ndegwa Ngari v Republic [2014] KECA 424 (KLR) the Court of Appeal said thus regarding the ingredients of the offence of murder:
“For the offence of murder, there are three elements which the prosecution must prove beyond reasonable doubt in order to secure a conviction. They are: (a) the death of the deceased and the cause of that death; (b) that the accused committed the unlawful act which caused the death of the deceased and (c) that the Accused had the malice aforethought. (See Nyambura & Others-vs-Republic, [2001] KLR 355).”
29. In this case, the prosecution''s evidence is that the deceased was attacked and cut with pangas by a gang of youths. PW 1 testified about what he saw on the material day in the evening in relation to the deceased. He testified that the deceased was attacked and cut with pangas by a gang of youths. Other witnesses, namely PW 3, PW 7, PW 8, and PW 9, also saw the deceased shortly after the attack and testified that he had multiple deep cuts on his body and was profusely bleeding. He died on the way to the hospital.
30. The post-mortem examination of the body of the deceased by PW 6, showed that the deceased died from multiple deep cut wounds to his head, hands, and legs caused by a sharp object. This corroborates the evidence of PW 1, the gang of youths cut the deceased with pangas. No doubt, the death was caused by the unlawful acts of members of the gang in cutting him with pangas.
31. Evidence from the testimonies of the prosecution witnesses leads to the conclusion that the gang that confronted PW 2 on his way from work was the same gang that PW 1 heard baying for the deceased’s blood and the same one that attacked and killed the deceased by cutting him with pangas. When PW 2 encountered them, the gang was calling out for the name of the deceased, Rashid, as the one they were looking for, and indeed, PW 1 heard them saying the same thing, and shortly afterwards, he saw them cutting him with the pangas that they had. I find that this is direct evidence of the cause of death of the deceased arising from an unlawful act.
32. In conclusion on the first ingredient of murder, that of actus reus, I am satisfied that it was indeed the act of being assaulted with pangas that caused severe injuries to the deceased, thereby leading to his death.
33. The next issue for determination is whether the prosecution has proved malice aforethought against the accused person.
34. Section 206 of the Penal Code provides for the instances under which malice aforethought is deemed established thus:
“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.”
35. From the evidence on record, it is apparent that the circumstances of the offence fall under section 206 (a), (b) and (c) of the Penal Code where malice aforethought is deemed to be established where the evidence adduced establishes that there was an intention to cause the death of or to do grievous harm to any person, whether, knowledge that the act or omission causing death will probably cause the death of or grievous harm to some person, and an intent to cause a felony.
36. The issue then is whether the evidence establishes the requisite mens rea on the part of the accused person.
37. On this ingredient of malice aforethought, the Court of Appeal, in the case of Bonaya Tutu Ipu & another v Republic [2015] KECA 335 (KLR) held thus:
“It is in rare circumstances that the intention to cause death is proved by direct evidence. More frequently, that intention is established by or inferred from the surrounding circumstances. In the persuasive decision of CHESAKIT V. UGANDA, CR. APP. NO. 95 OF 2004, the Court of Appeal of Uganda stated that in determining in a charge of murder whether malice aforethought has been proved, the court must take into account factors such as the part of the body injured, the type of weapon used, if any, the type of injuries inflicted upon the deceased and the subsequent conduct of the accused person. Earlier in REX V. TUBERE S/O OCHEN (1945) 12 EACA 63, the former Court of Appeal for Eastern Africa stated thus on the issue:
“It (the court) has a duty to perform in considering the weapon used and the part of the body injured, in arriving at a conclusion as to whether malice aforethought has been established, and it will be obvious that ordinarily an inference of malice will flow more readily from the case, say, of a spear or knife than from the use of a stick…”
38. In the present case, evidence that the deceased was attacked by a gang that was wielding weapons, namely pangas, sticks, and stones, which they used upon him, leads to no other conclusion than that they intended to cause death or grievous bodily harm to him.
39. In this case, the deceased was cut multiple times with pangas by a gang. The gang had been baying for his blood before they attacked him. After the attack, the gang members were heard boasting that they had killed him as a sign that they were demanding peace from whoever they meant.
40. I am satisfied from those actions that the intent to commit murder has been proved beyond any reasonable doubt. I find that malice aforethought has been established in terms of Section 206 (a) and (b) of the Penal Code.
41. The final issue is whether both mens rea and malice aforethought have been established against the accused person.
42. This court is aware that before relying on the evidence of identification as the basis for the conviction of an accused person, care should be taken to ensure that the same is watertight, especially where the circumstances were difficult and where the accused person was identified as the perpetrator. This was the position as held in the case of Wamunga v Republic [1989] KECA 47 (KLR) at 426, where the Court of Appeal said:
“Where the only evidence against a defendant was evidence of identification or recognition, a trial court was enjoined to examine such evidence carefully and to be satisfied that the circumstances of identification were favourable and free from possibility of error before it could safely make it the basis of a conviction.
43. The Court explained further that:
“What we have to decide now is whether that evidence was reliable and free from possibility of error so as to find a secure basis for the conviction of the appellant. Evidence of visual identification in criminal cases can bring about miscarriage of justice and it is of vital importance that such evidence is examined carefully to minimize this danger.
Whenever the case against a defendant depends wholly or to a great extent on the correctness of one or more identifications of the accused which he alleges to be mistaken the court must warn itself of the special need for caution before convicting the defendant in reliance on the correctness of the identification.”
44. PW 1 testified that the deceased was attacked and cut with pangas by a group of youths, among them the accused person, who was well known to him. He had earlier heard them shouting the deceased’s name, saying that they were looking for him and wanted to finish with him. PW 1 testified that he followed the group to identify those he knew and he was able to pick out Yahya and the accused person.
45. PW 2 identified the accused person as being among a group of youths who attacked him on his way from work, just around the same time that the deceased was attacked and cut with pangas, at 6.00 p.m. on 12th December 2022. They were shouting the name of the deceased, Rashid. The accused person took PW 2’s bag, and the youths set upon beating him until he ran away. Shortly afterwards, he learnt that the deceased had been attacked and badly cut by a gang of youths, and he later succumbed to the injuries. I am satisfied that PW 2 had a close-up opportunity with and did identify the accused person, who was known to him before.
46. PW 8 and PW 9, who were together the same evening, also encountered the gang of youths immediately after the deceased had been cut. The youths were carrying blood-stained pangas. PW 8 and PW 9 identified the accused person and Idris among the gang of youths. PW 8 said that the accused person was well known to him. Idris addressed the group, in which PW 7, and PW 8 were present, and told them that they were demanding peace, and also said that they had finished with one of them. It turned out shortly afterwards that when Idris was saying that they had finished with one of them, in fact, the gang of youths had killed the deceased by cutting him with pangas.
47. In the present case, the accused person was identified from a group of between 50 and 60 youths, as testified by the prosecution witnesses herein. There is no doubt that the situation was tense and scary as the youths were many and armed with pangas, among other weapons. However, PW 1, PW 2, and PW 8 each said that the accused person was known to them, and the accused person conceded that indeed he was related to them. They come from the same area, and they interact with one another often. The incident took place in broad daylight, and there was no indication that there could have been any difficulty in identifying him. In the case of PW 2, the accused person confronted him and took his bag. PW 2, therefore, saw him at close range.
48. Therefore, the identification of the accused person in this case was not of a stranger but by way of recognition of a person well known to the witnesses, PW 1, PW 2, and PW 8. He was not the only one identified. The witnesses were able to identify Idris, Mejuma, and the accused person. I have no reason to doubt their evidence.
49. None of the witnesses saw the accused person cut the deceased with a panga. The available evidence is that he was among the gang members. He was in the company of about 50 to 60 other people when they attacked and cut the deceased. The issue that arises is whether, under those circumstances, the accused person can be considered as having had a common intention with the other gang members to kill the deceased.
50. Section 21 of the Penal Code (Cap. 63) Laws of Kenya provides with respect to joint offenders in prosecution of a common purpose that:
“When two or more persons form a common intention to prosecute an unlawful purpose in conjunction with one another, and in the prosecution of such purpose an offence is committed of such a nature that its commission was a probable consequence of the prosecution of such purpose, each of them is deemed to have committed the offence.”
51. The Court of Appeal considered the definition of common intention in the case of Dickson Mwangi Munene & another v Republic [2014] KECA 774 (KLR) and held that:
“The law is well settled on the definition and in what circumstances common intention can be inferred if it is not express or obvious. Common intention is deduced where there are two or more parties that intend to pursue or to further an unlawful object or a lawful object by unlawful means and so act or express themselves as to reveal such intention. It implies a pre-arranged plan. Although common intention can develop in the course of the commission of an offence, it is normally anterior in point of time to the commission of the crime showing a pre-meditated plan to act in concert. It comes into being, in point of time, prior to the commission of the act.”
52. While considering the principle of common intention in relation to murder the court in the case of Njoroge versus Republic [1983] KLR 197, 204 held inter alia, that:-
“if several persons combine for an unlawful purpose and one of them in the prosecution of it kills a man, it is murder in all who are present whether they actually aided or abetted or not, provided that the death was caused by the act of someone of the party in the course of his endeavours to effect the common object of the assembly”
53. In Republic versus Tabulayenka S/O Kirya [1943] EACA 51 the Court of Appeal for Eastern Africa laid down the following principle with regard to common intention;-
“The common intention may be inferred from their presence, their actions and the omission of either of them to disassociate himself from the assault.”
54. In the present case, there is evidence that the accused person was present and he never dissociated himself from the acts of those who were assaulting the deceased in any way. I am satisfied that he supported these acts and was therefore a participant therein. I find that he had a common intention with the other gang members to kill the deceased or cause him grievous harm.
55. I am satisfied from the evidence tendered that the prosecution has discharged its burden to prove beyond a reasonable doubt that the accused person, together with others, murdered Rashid Nassir Kilanga, the deceased herein. Consequently, I find the accused person guilty of the offence of murder contrary to section 203 as read with section 204 of the Penal Code. He is hereby convicted accordingly.
56. Orders accordingly.
Judgment dated, signed and delivered in Open Court this 29th day of September 2025.
HON. ANDAYI W. F.
JUDGE
In the presence of: -
The accused persons present in court.
Okuthe for the accused person.
Ms Vallerie for the State.
Ummu - Court Assistant
'