JUDGMENT
Introduction
1. The accused person, Jared Barongo Sendora, 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 are that on the night of 20th September 2020, at Muma Sub-location, Getenga Location, within Kisii County, he murdered William Kengere Mandere.
2. The accused denied the charge. The prosecution called seven witnesses. At the close of the prosecution's case, the Court found that a prima facie case had been established and placed the accused on his defence pursuant to section 306(2) of the Criminal Procedure Code. The accused elected to give sworn testimony and called no witnesses.
3. The prosecution's case is that the accused found the deceased in circumstances suggesting an intimate relationship with the accused’s wife, attacked the deceased with a panga, and thereafter went to Nyamaiya Police Station saying that he had killed someone. The prosecution further relies on the recovery of a bloodstained panga and DNA evidence linking the deceased’s blood to that panga.
5. PW4 testified that upon questioning the accused, he said that he had killed someone at Muma Sub-location because the deceased had been moving with his wife, Karen Nyambeki Barongo. PW4 proceeded to the scene with other officers. At the scene, they found the deceased’s body lying in a pool of blood with several panga cuts on the head and hands. Through PC Emuria, the accused directed the officers to where the panga had been kept. PW4 stated that the panga was recovered from the house or kitchen of the accused’s second wife and that it had blood stains.
6. PW5, Polycarp Lutta Kweyu, an Assistant Government Analyst at the Government Chemist, Kisumu, testified that he received seven items for DNA analysis. The items included a panga with a wooden handle marked “A”, a green tray, two lotion bottles, loose soil, a wooden rungu with a metallic head, and the blood sample of William Mandere. He tested the items and found that the stains on the panga, tray, lotion bottles, soil and wooden rungu all tested positive for human blood.
7. PW5 generated DNA profiles and compared them with the DNA profile of the deceased. His finding was that the DNA profile generated from the blood on the panga matched the DNA profile of William Mandere, the deceased. The DNA profiles generated from the tray, lotion bottles, soil and wooden rungu matched the profile of a single unknown female person. He produced the Government Analyst’s report and exhibit memo form.
8. In cross-examination, PW5 confirmed that the DNA profile on the panga matched the blood of the deceased. He further stated that the blood on the other items was from a female person and was different from that of the deceased.
9. PW6, Catherine Momanyi Barongo, testified that she is the daughter of the accused. She was 18 years old at the time she testified and was in Form Four. She recalled that on 20th September 2020, at about 8.00 p.m., she was at home with her sister Sharon and her mother, Carren. They were having supper when she heard a voice screaming on the road near their home. The voice sounded like that of her father, the accused.
10. PW6 testified that she went outside with her sister and mother. She stated that the accused then cut her mother with a panga on the hand. She and her sister took their mother to Nyamaiya Police Station. She further testified that while going to the police station with her mother and sister, she heard the accused say, “I have killed someone.” She said that the accused did not speak before cutting her mother.
11. In cross-examination, PW6 stated that the accused was her father and that she saw him cut her mother with a panga. She stated that her mother was not fighting with the accused and that the assault occurred about two steps from the house. She said there was solar light outside the house and she saw the accused. In re-examination, she stated that her mother was cut as she was leaving the house and that there was solar light outside the house.
12. PW7, PC Victor Munene, was the lead investigating officer. He testified that on 21st September 2020, the case was allocated to him for investigations. He visited the scene at the accused’s home in Muma Sub-location. He saw a pool of blood. In the house of the accused’s wife, he observed blood spatter on the walls and recovered several bloodstained items, including a green tray, two lotion bottles, a rungu and soil samples. He prepared an inventory dated 21st September 2020.
13. PW7 testified that at the police station, he received a bloodstained panga, a torch and a Maasai rungu. He submitted the items to the Government Chemist, Kisumu, under an exhibit memo. After investigations, the file was forwarded to the ODPP, which recommended that the accused be charged with murder. He produced the inventory and exhibits.
14. In cross-examination, PW7 stated that the probable scene was on the accused’s parcel of land. He said the incident started inside the house and that he traced blood from the house to the shamba, where there was a pool of blood. He confirmed that he was not present when the accused allegedly stated that he had killed someone and that he was not the officer who recovered the panga. In re-examination, he stated that from the OB extract and the officers’ accounts, the accused took himself to the police station.
The Defence Evidence
20. The accused testified as DW1. He stated that on 20th September 2020, he was returning home from work and arrived at about 9.00 p.m. because it had rained. He knocked on the door and asked his wife to open it. When she opened, she pushed him aside. He then saw a torch behind her and saw a well-built man behind her. According to him, the man had a Maasai rungu and a panga.
21. The accused testified that the man came from the bedroom and appeared to want to fight him. He stated that he screamed, snatched the panga and that his wife ran outside. He said he remained with the man in the house and they fought. He said he threw the panga in the air while holding it, and since it was dark, he did not know whether he cut either the deceased or his wife. He later learnt that his wife had been injured. He stated that the man lay outside his compound, about four metres from the house. He then reported the death to the police, where he was locked up.
22. In cross-examination, the accused admitted that he found the deceased with his wife in his house on the material night. He stated that he suspected the deceased was having a love affair with his wife. He said the deceased had a panga in his hand, that he threw the panga in the air in self-defence, and that he did not know how many times he cut him. He also admitted that he was not locked in the house and that he was free to run away.
Issues for Determination
23. The issues that arise for determination are:
a. Whether the death of the deceased was proved;
b. Whether the death was caused by an unlawful act;
c. Whether the accused was positively linked to the fatal injuries;
d. Whether malice aforethought was proved beyond a reasonable doubt;
e. Whether the defences of self-defence and provocation avail the accused; and
f. What final orders should be issued?
Applicable Law
24. Section 203 of the Penal Code provides:
“Any person who of malice aforethought causes death of another person by an unlawful act or omission is guilty of murder.”
25. Section 204 of the Penal Code provides the penalty for murder. The prosecution must prove beyond reasonable doubt that the deceased died; that the death was caused by an unlawful act or omission; that the accused caused that death; and that in causing death, the accused acted with malice aforethought.
26. The burden of proof rests throughout on the prosecution. The accused bears no burden to prove his innocence. This is the golden thread in criminal law, as stated in Woolmington v Director of Public Prosecutions [1935] AC 462 and consistently applied in Kenya. The standard is proof beyond a reasonable doubt.
27. In Miller v Minister of Pensions [1947] 2 All ER 372, Lord Denning explained that proof beyond a reasonable doubt does not mean proof beyond a shadow of doubt, but proof that leaves the court with no reasonable doubt as to the guilt of the accused.
28. Malice aforethought is defined under section 206 of the Penal Code. It includes an intention to cause death or grievous harm, knowledge that the act causing death will probably cause death or grievous harm, intent to commit a felony, or an intention to facilitate escape after committing or attempting to commit a felony.
29. In Rex v Tubere s/o Ochen [1945] 12 EACA 63, the Court held that in determining malice aforethought, the court should consider the nature of the weapon used, the manner in which it was used, the part of the body targeted, the severity of the injuries and the conduct of the accused before, during and after the attack.
30. The Court of Appeal in Nzuki v Republic [1993] KLR 171 held that malice aforethought is a term of art and must be proved as a fact. It is not to be presumed merely because death occurred.
31. Where the prosecution relies on circumstantial evidence, the inculpatory facts must be incompatible with the innocence of the accused and incapable of explanation upon any other reasonable hypothesis than that of guilt. This principle was stated in R v Kipkering Arap Koske & Another [1949] 16 EACA 135, Simoni Musoke v Republic [1958] EA 715, and Abanga alias Onyango v Republic, Criminal Appeal No. 32 of 1990.
32. On the defence of self-defence, the applicable principle is that a person may use reasonable force to defend themselves, another person or property. However, the force used must be necessary and proportionate to the threat faced. Once self-defence is raised, the prosecution bears the burden of disproving it beyond a reasonable doubt.
33. On provocation, section 207 of the Penal Code provides that where a person unlawfully kills another in circumstances which, but for provocation, would constitute murder, and does so in the heat of passion caused by sudden provocation before there is time for his passion to cool, the offence is manslaughter only. Section 208 of the Penal Code defines provocation.
Analysis
Whether death and the cause of death were proved
34. The death of William Kengere Mandere was proved beyond a reasonable doubt. PW3 conducted the post-mortem examination and produced the post-mortem report. His evidence was clear, consistent and unshaken. The deceased suffered multiple deep cut wounds, including severe injuries to the head, chest and limbs. The right hand had been amputated.
35. PW3 formed the opinion that death was caused by multiple injuries involving the head, chest and limbs due to penetrating force trauma from assault. That evidence was not controverted. I therefore find that the death and cause of death were proved.
Whether the accused caused the fatal injuries
36. There was no eye witness who testified to seeing the accused cut the deceased. However, the prosecution presented circumstantial and scientific evidence seeking to link the accused to the fatal injuries. The accused admitted that he found the deceased inside his house with his wife on the material night, that he engaged in a physical confrontation with him, that he snatched the panga, that the deceased later lay outside his compound with injuries, and that he went to report the death to the police.
37. PW2 and PW4 testified that the accused went to Nyamaiya Police Station shortly after the incident and said that he had killed someone. PW4 heard a person shouting, “I have killed, I have killed.” When he proceeded to the report office, he found the accused there. PW2 similarly testified that the accused said he had killed someone at home because of an affair involving his wife.
38. PW6, the accused’s daughter, testified that she heard the accused say, “I have killed someone.” She also testified that she saw the accused cut her mother with a panga. Her evidence placed the accused in possession and use of a panga during the same transaction of events on the material night.
39. PW5’s scientific evidence established that the blood on the panga matched the DNA profile of the deceased. This evidence is of great probative value. It corroborated the prosecution evidence that a panga was used to inflict the fatal injuries and that the deceased’s blood was on that panga.
40. PW7’s evidence placed the scene at the accused’s home. He testified that there was blood spatter in the house and that blood was traced from the house to the shamba where the deceased’s body lay. This evidence is consistent with the accused’s own account that the confrontation began inside the house and ended outside.
41. The deceased was found dead within the accused’s compound. The accused admitted a confrontation with the deceased. He admitted holding the panga. He went to the police station immediately thereafter. The panga had the deceased’s blood. The injuries were consistent with panga cuts. No other reasonable hypothesis emerges from the evidence except that the accused inflicted the fatal injuries.
42. In my view, the prosecution established an unbroken chain of events leading to the conclusion that the accused, and no other person, caused the death of the deceased.
43. I therefore find that the prosecution proved beyond a reasonable doubt that the accused caused the injuries that led to the death of the deceased.
Whether self-defence avails the accused
44. The accused contends that he acted in self-defence. He says he found the deceased in his house with his wife, that the deceased had a Maasai rungu and a panga, and that he snatched the panga during a struggle.
45. The Court has carefully considered that defence. There are aspects of the evidence which support a sudden confrontation. The accused found the deceased in his house at night. The accused’s wife was injured. Blood was found on several items, and PW5 confirmed that the blood on those items, apart from the panga, belonged to an unknown female person. This is consistent with evidence that the accused’s wife was injured during the same incident.
46. However, self-defence must be measured against necessity and proportionality. The injuries suffered by the deceased were extensive. They included multiple deep cuts to the head and face, a chest wound, and amputation of the right hand. PW3 testified that the hand injury could have been defensive. These injuries reveal repeated use of a sharp weapon against vulnerable parts of the body.
47. The accused’s explanation that he threw the panga in the air while holding it and did not know whether he cut the deceased cannot reasonably account for the nature, number and distribution of the injuries. Multiple deep wounds to the head, chest and limbs cannot be explained as accidental cuts in darkness. They point to repeated application of force.
48. Further, the accused admitted in cross-examination that he was free to run away. Even assuming that the deceased initially posed a threat, the force used by the accused was excessive and disproportionate. The prosecution therefore disproved the defence of self-defence beyond reasonable doubt.
Whether the killing was unlawful
49. The law presumes every homicide to be unlawful unless excused or justified. The deceased was found dead within the accused’s compound. The accused admitted a confrontation with the deceased. He admitted holding the panga. He went to the police station immediately thereafter. The panga had the deceased’s blood. The injuries were consistent with panga cuts. The deceased suffered multiple deep cuts to the head, chest and limbs and his hand was amputated. These injuries were not minor, accidental or incidental. They were grave and fatal.
50. I find that the act which caused the deceased’s death was unlawful.
Whether malice aforethought was proved
51. The next question is whether the prosecution proved malice aforethought beyond a reasonable doubt. This is the central issue in this case. It is trite law in murder cases that actus reus does not constitute an offence unless it is accompanied by a guilty mind, or mens rea.
52. The accused used a panga, a lethal weapon, to attack the deceased. The injuries were multiple and severe. The deceased was cut on the head, face, chest and limbs. The head is a vulnerable part of the body. The degree of violence was extreme.
53. Ordinarily, such evidence would sustain an inference that the attacker intended to cause death or grievous harm.
54. However, the Court must also consider the circumstances in which the killing occurred. The prosecution’s own evidence was that the accused stated immediately after the incident that he had killed someone because the deceased had been moving with or having an affair with his wife. The accused’s defence, though not accepted as self-defence, was that he found the deceased in his house at night with his wife. This part of the defence was not seriously displaced. Indeed, the prosecution evidence broadly supports the existence of a domestic and sexual-provocation context.
55. The evidence further shows that the incident occurred at night, at the accused’s home, and in the setting of a sudden confrontation. The accused went to the police station soon thereafter and reported that he had killed someone. He did not flee. While that conduct does not excuse the killing, it is relevant in assessing whether the killing was premeditated or whether it occurred in the heat of passion.
56. The law does not permit a person to kill another out of jealousy, suspicion, or upon discovery of adultery. Such conduct remains unlawful. However, where the evidence raises a reasonable possibility that the accused acted upon sudden provocation, in the heat of passion, the Court must consider whether the offence disclosed is murder or manslaughter.
57. I am satisfied that the accused unlawfully caused the death of the deceased.
58. The defence of self-defence does not avail the accused, as the force used was excessive and disproportionate in the circumstances.
59. On the defence of sudden provocation, the accused’s position was that he found the deceased in circumstances suggesting an intimate relationship with his wife. That fact was not disputed. Indeed, the investigating officer confirmed that this formed the genesis of the incident leading to the death of the deceased. The accused stated that the confrontation occurred in the spur of the moment. PW6, the daughter of the deceased, testified only on the assault upon her mother and avoided testifying on the presence of the deceased or whether she witnessed the accused attack him.
60. Sections 207 and 208 of the Penal Code provide as follows:
207. Killing on provocation
When a person who unlawfully kills another under circumstances which, but for the provisions of this section, would constitute murder, does the act which causes death in the heat of passion caused by sudden provocation as hereinafter defined, and before there is time for his passion to cool, he is guilty of manslaughter only.
208. Provocation defined
(1) The term “provocation” means and includes, except as hereinafter stated, any wrongful act or insult of such a nature as to be likely, when done to an ordinary person or in the presence of an ordinary person to another person who is under his immediate care, or to whom he stands in a conjugal, parental, filial or fraternal relation, or in the relation of master or servant, to deprive him of the power of self-control and to induce him to commit an assault of the kind which the person charged committed upon the person by whom the act or insult is done or offered.
Determination
61. I have considered the nature of the attack, the scene of the incident, the time interval between the discovery and the assault, the weapon used, the conduct of the accused after the incident, and the totality of the evidence on record. I have no doubt that this was a crime of passion, as substantially admitted by both parties. The accused acted in the spur of the moment and therefore had no opportunity to premeditate upon his actions. I am not satisfied that the defence of provocation was an afterthought in the circumstances of this case. I therefore admit the defence of provocation as raised by the accused under sections 207 and 208 of the Penal Code, particularly because the law expressly recognises acts or insults affecting persons in a conjugal relationship.
62. Consequently, the evidence on record does not disclose the offence of murder, but rather the lesser offence of manslaughter contrary to section 202 as read with section 205 of the Penal Code.
63. I therefore invoke the provisions of section 179 of the Criminal Procedure Code and reduce the charge from murder to manslaughter.
Disposition
64. The prosecution has proved the charge of manslaughter contrary to section 202 as read with section 205 of the Penal Code against accused beyond any reasonable doubt I accordingly find the accused guilty of manslaughter and convict him of the same under section 322 (2) of the Criminal Procedure Code.
T. A. ODERA
JUDGE
18.5.26
DELIVERED VIRTUALLY VIA TEAMS PLATFORM ON THIS 20TH DAY OF MAY 2026 IN THE PRESENCE OF APPELLANT , MR OKENYE FOR ACCUSED , MR KOIMA FOR THE STATE AND CA- KIPCHIRCHIR
KOIMA: accused has no previous records
OKENYE : I seek a presentence report before mitigation .
Koima : The victims are absent . Their views can be incorporated in the report .
Order : Mention on 23.6.26 at 8.45 am for presentence report . Accused is remanded in custody .
T. A. ODERA
fJUDGE
20.5.26
Introduction
1. The accused person, Jared Barongo Sendora, 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 are that on the night of 20th September 2020, at Muma Sub-location, Getenga Location, within Kisii County, he murdered William Kengere Mandere.
2. The accused denied the charge. The prosecution called seven witnesses. At the close of the prosecution's case, the Court found that a prima facie case had been established and placed the accused on his defence pursuant to section 306(2) of the Criminal Procedure Code. The accused elected to give sworn testimony and called no witnesses.
3. The prosecution's case is that the accused found the deceased in circumstances suggesting an intimate relationship with the accused’s wife, attacked the deceased with a panga, and thereafter went to Nyamaiya Police Station saying that he had killed someone. The prosecution further relies on the recovery of a bloodstained panga and DNA evidence linking the deceased’s blood to that panga.
5. PW4 testified that upon questioning the accused, he said that he had killed someone at Muma Sub-location because the deceased had been moving with his wife, Karen Nyambeki Barongo. PW4 proceeded to the scene with other officers. At the scene, they found the deceased’s body lying in a pool of blood with several panga cuts on the head and hands. Through PC Emuria, the accused directed the officers to where the panga had been kept. PW4 stated that the panga was recovered from the house or kitchen of the accused’s second wife and that it had blood stains.
6. PW5, Polycarp Lutta Kweyu, an Assistant Government Analyst at the Government Chemist, Kisumu, testified that he received seven items for DNA analysis. The items included a panga with a wooden handle marked “A”, a green tray, two lotion bottles, loose soil, a wooden rungu with a metallic head, and the blood sample of William Mandere. He tested the items and found that the stains on the panga, tray, lotion bottles, soil and wooden rungu all tested positive for human blood.
7. PW5 generated DNA profiles and compared them with the DNA profile of the deceased. His finding was that the DNA profile generated from the blood on the panga matched the DNA profile of William Mandere, the deceased. The DNA profiles generated from the tray, lotion bottles, soil and wooden rungu matched the profile of a single unknown female person. He produced the Government Analyst’s report and exhibit memo form.
8. In cross-examination, PW5 confirmed that the DNA profile on the panga matched the blood of the deceased. He further stated that the blood on the other items was from a female person and was different from that of the deceased.
9. PW6, Catherine Momanyi Barongo, testified that she is the daughter of the accused. She was 18 years old at the time she testified and was in Form Four. She recalled that on 20th September 2020, at about 8.00 p.m., she was at home with her sister Sharon and her mother, Carren. They were having supper when she heard a voice screaming on the road near their home. The voice sounded like that of her father, the accused.
10. PW6 testified that she went outside with her sister and mother. She stated that the accused then cut her mother with a panga on the hand. She and her sister took their mother to Nyamaiya Police Station. She further testified that while going to the police station with her mother and sister, she heard the accused say, “I have killed someone.” She said that the accused did not speak before cutting her mother.
11. In cross-examination, PW6 stated that the accused was her father and that she saw him cut her mother with a panga. She stated that her mother was not fighting with the accused and that the assault occurred about two steps from the house. She said there was solar light outside the house and she saw the accused. In re-examination, she stated that her mother was cut as she was leaving the house and that there was solar light outside the house.
12. PW7, PC Victor Munene, was the lead investigating officer. He testified that on 21st September 2020, the case was allocated to him for investigations. He visited the scene at the accused’s home in Muma Sub-location. He saw a pool of blood. In the house of the accused’s wife, he observed blood spatter on the walls and recovered several bloodstained items, including a green tray, two lotion bottles, a rungu and soil samples. He prepared an inventory dated 21st September 2020.
13. PW7 testified that at the police station, he received a bloodstained panga, a torch and a Maasai rungu. He submitted the items to the Government Chemist, Kisumu, under an exhibit memo. After investigations, the file was forwarded to the ODPP, which recommended that the accused be charged with murder. He produced the inventory and exhibits.
14. In cross-examination, PW7 stated that the probable scene was on the accused’s parcel of land. He said the incident started inside the house and that he traced blood from the house to the shamba, where there was a pool of blood. He confirmed that he was not present when the accused allegedly stated that he had killed someone and that he was not the officer who recovered the panga. In re-examination, he stated that from the OB extract and the officers’ accounts, the accused took himself to the police station.
The Defence Evidence
20. The accused testified as DW1. He stated that on 20th September 2020, he was returning home from work and arrived at about 9.00 p.m. because it had rained. He knocked on the door and asked his wife to open it. When she opened, she pushed him aside. He then saw a torch behind her and saw a well-built man behind her. According to him, the man had a Maasai rungu and a panga.
21. The accused testified that the man came from the bedroom and appeared to want to fight him. He stated that he screamed, snatched the panga and that his wife ran outside. He said he remained with the man in the house and they fought. He said he threw the panga in the air while holding it, and since it was dark, he did not know whether he cut either the deceased or his wife. He later learnt that his wife had been injured. He stated that the man lay outside his compound, about four metres from the house. He then reported the death to the police, where he was locked up.
22. In cross-examination, the accused admitted that he found the deceased with his wife in his house on the material night. He stated that he suspected the deceased was having a love affair with his wife. He said the deceased had a panga in his hand, that he threw the panga in the air in self-defence, and that he did not know how many times he cut him. He also admitted that he was not locked in the house and that he was free to run away.
Issues for Determination
23. The issues that arise for determination are:
a. Whether the death of the deceased was proved;
b. Whether the death was caused by an unlawful act;
c. Whether the accused was positively linked to the fatal injuries;
d. Whether malice aforethought was proved beyond a reasonable doubt;
e. Whether the defences of self-defence and provocation avail the accused; and
f. What final orders should be issued?
Applicable Law
24. Section 203 of the Penal Code provides:
“Any person who of malice aforethought causes death of another person by an unlawful act or omission is guilty of murder.”
25. Section 204 of the Penal Code provides the penalty for murder. The prosecution must prove beyond reasonable doubt that the deceased died; that the death was caused by an unlawful act or omission; that the accused caused that death; and that in causing death, the accused acted with malice aforethought.
26. The burden of proof rests throughout on the prosecution. The accused bears no burden to prove his innocence. This is the golden thread in criminal law, as stated in Woolmington v Director of Public Prosecutions [1935] AC 462 and consistently applied in Kenya. The standard is proof beyond a reasonable doubt.
27. In Miller v Minister of Pensions [1947] 2 All ER 372, Lord Denning explained that proof beyond a reasonable doubt does not mean proof beyond a shadow of doubt, but proof that leaves the court with no reasonable doubt as to the guilt of the accused.
28. Malice aforethought is defined under section 206 of the Penal Code. It includes an intention to cause death or grievous harm, knowledge that the act causing death will probably cause death or grievous harm, intent to commit a felony, or an intention to facilitate escape after committing or attempting to commit a felony.
29. In Rex v Tubere s/o Ochen [1945] 12 EACA 63, the Court held that in determining malice aforethought, the court should consider the nature of the weapon used, the manner in which it was used, the part of the body targeted, the severity of the injuries and the conduct of the accused before, during and after the attack.
30. The Court of Appeal in Nzuki v Republic [1993] KLR 171 held that malice aforethought is a term of art and must be proved as a fact. It is not to be presumed merely because death occurred.
31. Where the prosecution relies on circumstantial evidence, the inculpatory facts must be incompatible with the innocence of the accused and incapable of explanation upon any other reasonable hypothesis than that of guilt. This principle was stated in R v Kipkering Arap Koske & Another [1949] 16 EACA 135, Simoni Musoke v Republic [1958] EA 715, and Abanga alias Onyango v Republic, Criminal Appeal No. 32 of 1990.
32. On the defence of self-defence, the applicable principle is that a person may use reasonable force to defend themselves, another person or property. However, the force used must be necessary and proportionate to the threat faced. Once self-defence is raised, the prosecution bears the burden of disproving it beyond a reasonable doubt.
33. On provocation, section 207 of the Penal Code provides that where a person unlawfully kills another in circumstances which, but for provocation, would constitute murder, and does so in the heat of passion caused by sudden provocation before there is time for his passion to cool, the offence is manslaughter only. Section 208 of the Penal Code defines provocation.
Analysis
Whether death and the cause of death were proved
34. The death of William Kengere Mandere was proved beyond a reasonable doubt. PW3 conducted the post-mortem examination and produced the post-mortem report. His evidence was clear, consistent and unshaken. The deceased suffered multiple deep cut wounds, including severe injuries to the head, chest and limbs. The right hand had been amputated.
35. PW3 formed the opinion that death was caused by multiple injuries involving the head, chest and limbs due to penetrating force trauma from assault. That evidence was not controverted. I therefore find that the death and cause of death were proved.
Whether the accused caused the fatal injuries
36. There was no eye witness who testified to seeing the accused cut the deceased. However, the prosecution presented circumstantial and scientific evidence seeking to link the accused to the fatal injuries. The accused admitted that he found the deceased inside his house with his wife on the material night, that he engaged in a physical confrontation with him, that he snatched the panga, that the deceased later lay outside his compound with injuries, and that he went to report the death to the police.
37. PW2 and PW4 testified that the accused went to Nyamaiya Police Station shortly after the incident and said that he had killed someone. PW4 heard a person shouting, “I have killed, I have killed.” When he proceeded to the report office, he found the accused there. PW2 similarly testified that the accused said he had killed someone at home because of an affair involving his wife.
38. PW6, the accused’s daughter, testified that she heard the accused say, “I have killed someone.” She also testified that she saw the accused cut her mother with a panga. Her evidence placed the accused in possession and use of a panga during the same transaction of events on the material night.
39. PW5’s scientific evidence established that the blood on the panga matched the DNA profile of the deceased. This evidence is of great probative value. It corroborated the prosecution evidence that a panga was used to inflict the fatal injuries and that the deceased’s blood was on that panga.
40. PW7’s evidence placed the scene at the accused’s home. He testified that there was blood spatter in the house and that blood was traced from the house to the shamba where the deceased’s body lay. This evidence is consistent with the accused’s own account that the confrontation began inside the house and ended outside.
41. The deceased was found dead within the accused’s compound. The accused admitted a confrontation with the deceased. He admitted holding the panga. He went to the police station immediately thereafter. The panga had the deceased’s blood. The injuries were consistent with panga cuts. No other reasonable hypothesis emerges from the evidence except that the accused inflicted the fatal injuries.
42. In my view, the prosecution established an unbroken chain of events leading to the conclusion that the accused, and no other person, caused the death of the deceased.
43. I therefore find that the prosecution proved beyond a reasonable doubt that the accused caused the injuries that led to the death of the deceased.
Whether self-defence avails the accused
44. The accused contends that he acted in self-defence. He says he found the deceased in his house with his wife, that the deceased had a Maasai rungu and a panga, and that he snatched the panga during a struggle.
45. The Court has carefully considered that defence. There are aspects of the evidence which support a sudden confrontation. The accused found the deceased in his house at night. The accused’s wife was injured. Blood was found on several items, and PW5 confirmed that the blood on those items, apart from the panga, belonged to an unknown female person. This is consistent with evidence that the accused’s wife was injured during the same incident.
46. However, self-defence must be measured against necessity and proportionality. The injuries suffered by the deceased were extensive. They included multiple deep cuts to the head and face, a chest wound, and amputation of the right hand. PW3 testified that the hand injury could have been defensive. These injuries reveal repeated use of a sharp weapon against vulnerable parts of the body.
47. The accused’s explanation that he threw the panga in the air while holding it and did not know whether he cut the deceased cannot reasonably account for the nature, number and distribution of the injuries. Multiple deep wounds to the head, chest and limbs cannot be explained as accidental cuts in darkness. They point to repeated application of force.
48. Further, the accused admitted in cross-examination that he was free to run away. Even assuming that the deceased initially posed a threat, the force used by the accused was excessive and disproportionate. The prosecution therefore disproved the defence of self-defence beyond reasonable doubt.
Whether the killing was unlawful
49. The law presumes every homicide to be unlawful unless excused or justified. The deceased was found dead within the accused’s compound. The accused admitted a confrontation with the deceased. He admitted holding the panga. He went to the police station immediately thereafter. The panga had the deceased’s blood. The injuries were consistent with panga cuts. The deceased suffered multiple deep cuts to the head, chest and limbs and his hand was amputated. These injuries were not minor, accidental or incidental. They were grave and fatal.
50. I find that the act which caused the deceased’s death was unlawful.
Whether malice aforethought was proved
51. The next question is whether the prosecution proved malice aforethought beyond a reasonable doubt. This is the central issue in this case. It is trite law in murder cases that actus reus does not constitute an offence unless it is accompanied by a guilty mind, or mens rea.
52. The accused used a panga, a lethal weapon, to attack the deceased. The injuries were multiple and severe. The deceased was cut on the head, face, chest and limbs. The head is a vulnerable part of the body. The degree of violence was extreme.
53. Ordinarily, such evidence would sustain an inference that the attacker intended to cause death or grievous harm.
54. However, the Court must also consider the circumstances in which the killing occurred. The prosecution’s own evidence was that the accused stated immediately after the incident that he had killed someone because the deceased had been moving with or having an affair with his wife. The accused’s defence, though not accepted as self-defence, was that he found the deceased in his house at night with his wife. This part of the defence was not seriously displaced. Indeed, the prosecution evidence broadly supports the existence of a domestic and sexual-provocation context.
55. The evidence further shows that the incident occurred at night, at the accused’s home, and in the setting of a sudden confrontation. The accused went to the police station soon thereafter and reported that he had killed someone. He did not flee. While that conduct does not excuse the killing, it is relevant in assessing whether the killing was premeditated or whether it occurred in the heat of passion.
56. The law does not permit a person to kill another out of jealousy, suspicion, or upon discovery of adultery. Such conduct remains unlawful. However, where the evidence raises a reasonable possibility that the accused acted upon sudden provocation, in the heat of passion, the Court must consider whether the offence disclosed is murder or manslaughter.
57. I am satisfied that the accused unlawfully caused the death of the deceased.
58. The defence of self-defence does not avail the accused, as the force used was excessive and disproportionate in the circumstances.
59. On the defence of sudden provocation, the accused’s position was that he found the deceased in circumstances suggesting an intimate relationship with his wife. That fact was not disputed. Indeed, the investigating officer confirmed that this formed the genesis of the incident leading to the death of the deceased. The accused stated that the confrontation occurred in the spur of the moment. PW6, the daughter of the deceased, testified only on the assault upon her mother and avoided testifying on the presence of the deceased or whether she witnessed the accused attack him.
60. Sections 207 and 208 of the Penal Code provide as follows:
207. Killing on provocation
When a person who unlawfully kills another under circumstances which, but for the provisions of this section, would constitute murder, does the act which causes death in the heat of passion caused by sudden provocation as hereinafter defined, and before there is time for his passion to cool, he is guilty of manslaughter only.
208. Provocation defined
(1) The term “provocation” means and includes, except as hereinafter stated, any wrongful act or insult of such a nature as to be likely, when done to an ordinary person or in the presence of an ordinary person to another person who is under his immediate care, or to whom he stands in a conjugal, parental, filial or fraternal relation, or in the relation of master or servant, to deprive him of the power of self-control and to induce him to commit an assault of the kind which the person charged committed upon the person by whom the act or insult is done or offered.
Determination
61. I have considered the nature of the attack, the scene of the incident, the time interval between the discovery and the assault, the weapon used, the conduct of the accused after the incident, and the totality of the evidence on record. I have no doubt that this was a crime of passion, as substantially admitted by both parties. The accused acted in the spur of the moment and therefore had no opportunity to premeditate upon his actions. I am not satisfied that the defence of provocation was an afterthought in the circumstances of this case. I therefore admit the defence of provocation as raised by the accused under sections 207 and 208 of the Penal Code, particularly because the law expressly recognises acts or insults affecting persons in a conjugal relationship.
62. Consequently, the evidence on record does not disclose the offence of murder, but rather the lesser offence of manslaughter contrary to section 202 as read with section 205 of the Penal Code.
63. I therefore invoke the provisions of section 179 of the Criminal Procedure Code and reduce the charge from murder to manslaughter.
Disposition
64. The prosecution has proved the charge of manslaughter contrary to section 202 as read with section 205 of the Penal Code against accused beyond any reasonable doubt I accordingly find the accused guilty of manslaughter and convict him of the same under section 322 (2) of the Criminal Procedure Code.
T. A. ODERA
JUDGE
18.5.26
DELIVERED VIRTUALLY VIA TEAMS PLATFORM ON THIS 20TH DAY OF MAY 2026 IN THE PRESENCE OF APPELLANT , MR OKENYE FOR ACCUSED , MR KOIMA FOR THE STATE AND CA- KIPCHIRCHIR
KOIMA: accused has no previous records
OKENYE : I seek a presentence report before mitigation .
Koima : The victims are absent . Their views can be incorporated in the report .
Order : Mention on 23.6.26 at 8.45 am for presentence report . Accused is remanded in custody .
T. A. ODERA
fJUDGE
20.5.26