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JudgmentThe Republic VS KENNEDY WACHIRA IRERI15 min read

The Republic VS KENNEDY WACHIRA IRERI

High Court at Embu High Court · · Lucy Njuguna


  1. The accused was charged with murder contrary to Section 203 as read together with Section 204 of the Penal Code. The particulars of the offence are on 20th Janurary 2023 at Kichugu village in Kigumo sublocation, Kyeni location in Embu East subcounty within Embu County, the accused murdered Benson Ireri Njoroge. The accused person pleaded not guilty and a plea of not guilty was duly entered before the matter proceeded to full hearing.
  2. PW1, John Daniel Kweru stated that the accused is his nephew and the deceased is his brother, the accused’s father. He stated that on the night of the incident, he heard the accused and the deceased arguing and each of them was claiming ownership of the gas cylinder. That the accused was also demanding for money from the deceased who told him that he had already given him Kshs.1,000/= and whatever remained was for the other children. That he went to sleep and at around midnight he heard a loud bang and when he went to check, he found the deceased lying in a pool of blood near his door and he had a stab wound on the right side of his stomach. That he informed his other brother called Njeru Njoroge who returned to the scene with him before they informed the subarea chief who also went to the scene. That the police arrived later and told the to look after the scene and they returned at about 4AM to process it and remove the body.
  3. He stated that the same night, they heard the accused’s phone ringing from the shamba and the subarea chief went to get it. On cross-examination, he stated that the accused and the deceased were threatening to kill each other. That the accused and the deceased were both drank and that it was not unusual for them to quarrel. That he did not see the accused or the deceased before the deceased was found dead and that he was not sure if there was any other person in their house that night.
  4. It was his testimony that the deceased was lying at the doorway to his house and the door was open. That he took sometime before heading to the deceased’s house after he heard the bang and that he couldn’t tell what had happened. That he went to check because the bang was not an ordinary bang and the deceased’s house was around 10 meters from his house. That the accused showed up at around 4AM and he said he was coming from Karurumo and on seeing the body of his late father he asked “kwani baba yangu amefanyika nini?”(what has happened to my father?).
  5. PW2 was Dr. Sheila Shavulimo, a psychiatrist at Embu Level 5 Hospital, who conducted mental assessment on the accused person. She stated that following the assessment, the accused was found to be mentally fit to plead. She produced the mental assessment report as evidence.
  6. PW3 was Richard Njeru, the subarea chief of Gichugu in Kigumo. He stated that at 1:30AM on the day of the incident, PW1 went to his home and told him that the deceased had died. He accompanied him to the home of the deceased and they found him lying on his back, dead. On cross-examination, he stated that he did not know what had happened to the deceased.
  7. PW4 was John Kareko, the area chief of Kyeni East location who stated that PW3 told him about the death of the deceased and he headed to the scene in the company of one police officer where they found the deceased lying in a pool of blood. He stated that PW1 told them that the accused and the deceased were quarrelling before the incident but it was not an unusual occurrence, as they used to quarrel after their drinking sprees and on the day of the incident, they were both drank. That when they checked the accused’s house, he was not there but when they returned to process the scene at around 6AM, the accused was there with his mother who had separated with the deceased for some time. On cross-examination, he stated that when he arrived at the scene, he did not see any blood inside the house but the deceased clothes were blood stained. 
  8. PW5 was Dr. Moses Maina who conducted postmortem on the body of the deceased. He testified that the body was very pale indicating excessive blood loss and that there was a 2CM deep cut by a sharp object on the right femoral triangle and bruises on the right knee and right elbow. The lower limbs were covered with blood clots. Inside the body, he observed that the right femoral artery and vein and femoral nerve had been completely severed. He formed the opinion that the cause of death was excessive bleeding from severed femoral vessels caused by a sharp object. He produced the postmortem report as evidence.
  9. PW6 was P.C. Daniel Murgor of DCI Embu East who was the investigating officer in the matter. He stated that he was at Runyenjes Police Station when he received a call from the officer in charge of Kigumo Police Post informing him about a murder report. That he visited the scene together with other officers and there, they found PW4 and one police officer from Kigumo Police Station. He stated that they confirmed that the deceased was dead and had been stabbed on the thigh and they processed the scene and removed the body to Kyeni Mission Hospital Mortuary.
  10. He stated that from the investigations, the deceased was living with his son, the accused and he had separated with his wife. That the accused and the deceased occasionally quarreled and they had quarreled before the deceased was found dead. He stated that no murder weapon was recovered. That the accused was taken to the police station and placed in custody then he revisited the scene to draw a sketch map and record witness statements from witnesses. He also attended postmortem and he recommended that the accused person be charged with the offence. That the photographs taken at the scene were not processed because the officer who took them died before he could process them.
  11. On cross-examination, he stated that he concluded that the accused was responsible for the murder of the deceased because he was the only one living in the house with the deceased and that the neighbours said that he had quarreled with the deceased prior to the incident. That he did not take the deceased’s clothes for further analysis. It was also his evidence that some people who refused to record their statements said that on the night of the incident, the accused and the deceased were seen leaving Kigumo market together and they were drank.  That there are no eye witnesses in the case and that the deceased’s wife had left with the other children.
  12. PW7 was Geoffrey Njoroge, the deceased’s brother and the accused’s uncle. He stated that PW1 and one Isaiah Njiru went to his house and told him that the deceased was lying at his doorway. That they went to the scene together and when they called out to him, the deceased did not respond. That they went to PW3’s home and he accompanied them to the scene. Later, the chief and police officers also went to the scene but the accused person was not there and he returned later, took the deceased’s phone and went away. That the accused had been living with the deceased for a while.
  13. On cross-examination, he stated that the accused entered the same vehicle that was carrying the deceased’s body. That he did not see the accused at the scene and he couldn’t tell whether the deceased had withdrawn any money from his account. That he did not hear the deceased and the accused quarrelling and he did not know what caused the death of the deceased.
  14. After the close of the prosecution’s case, the court found that the accused person had a case to answer and he was placed on his defense.
  15. DW1, the accused person, stated that on 19th January 2023, the deceased went to the bank to look for a job for his (DW1’s) brother, Dickson Gitonga. That he (DW1) went to work in the farm until 2.00 p.m when the deceased called to tell him that he was on the way home. That since he was fetching water from the river, the deceased told him to get a hireling who would be paid to help carry the water home. He stated that since he failed to find someone, he would be paid whatever amount the deceased would have paid for the service. That the deceased got home and asked him to accompany him to the market for a drink and though he joined him, he did not drink alcohol.
  16. That while at the bar, the deceased gave him Kshs.1,000/= from which he was to pay the person who helped him carry water. That he left the bar at around 4:30 p.m and returned to his work until 6PM when the deceased brought him a piece of meat to cook and then he left again. That he cooked ugali and meat and then left with his friend, Eric Muriithi for a drink at the market at around 8.00p.m. That while at the bar, they were joined by 2 ladies with whom they spent the night and he left for home at 5.00 a.m, the following morning. That he entered home using the gate on the lower side and upon entering, he found some people talking and his aunt told him that his father had been found dead.
  17. He denied having quarrelled with his father that night and stated that when he left the house, he locked the door since the deceased had his own set of keys. That he had left his phone charging in the deceased’s house since there was no power in his house and the following day, he found the subarea chief with it. On cross-examination, he stated that he left for the club with Eric and he had last seen the deceased at 7PM. That he had gone to get milk at 8PM and returned at 8:30PM, at which time the deceased was not at home but half of the food he had cooked had been eaten and so he concluded that the deceased had eaten. That they went to personality bar at 9PM and they were joined by their lady friends at midnight. That he spent the night with a lady called mercy even though she was not his witness. 
  18. DW2 was Eric Muriithi Nthiga who stated that on the night of the incident, he went with DW1 to Personality bar at 9PM. That the club closed at 1AM and they went to Green Garden club where they rented rooms for the night and they stayed there with the ladies they were with. That the next morning, he was on his way home when he found a crowd at the deceased’s home saying that the deceased had been found dead. On cross-examination, he stated that on the way to Personality bar, they had met 2 ladies at Kigumo market whom they went with to the 2 bars. That they rented the rooms for Kshs.300/= each and that is when he parted ways with the accused and did not see him again that night.
  19. After the close of the defense case, the accused filed his written submissions.
  20. It was his submission that the prosecution has failed to prove both mens rea and actus reus against him and he urged the court to give him the benefit of doubt. It was his case that the prosecution ought to have focused on finding out the deceased’s movement that day since it all started with him going to the bank, thus, it could have been a case of theft. He relied on the case of Erick Otieno Meda v. Republic (2019) eKLR which quoted the case of S. v. Malefo en andere 1998 (1) SACR 127 in which the court discussed the burden of proof that should be borne by the prosecution, which burden never shifts to the accused at any given point. He urged the court to consider the alibi presented by the accused and acquit him of the charge.
  21. The issue for determination herein is whether or not the offence of murder has been proved beyond reasonable doubt.
  22. Article 26 of the Constitution of Kenya provides that a person shall not be deprived of life intentionally, except to the extent authorized by the Constitution or written law. The accused person herein faces the charge of murder contrary to section 203 as read together with 204 of the Penal Code. Section 203 of the Penal Code provides:

“203. Any person who of malice aforethought causes death of another person by an unlawful act or omission is guilty of murder.”

  1. In the case of Republic v W.O.O. [2020] eKLR (Migori High Court Criminal Appeal No. 26 of 2017) the elements of murder were explained, as guided by the Court of Appeal in the case of Anthony Ndegwa Ngari vs Republic [2014] eKLR, as follows:

“For the offence of murder to be proved, 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.”

  1. The first element is death and cause of death. PW5 testified that the deceased suffered a 2CM deep cut by a sharp object on the right femoral triangle and there were bruises on the right knee and right elbow. He observed that the right femoral artery and vein and femoral nerve had been completely severed. He formed the opinion that the cause of death was excessive bleeding from severed femoral vessels caused by a sharp object.
  2. The second thing is to prove that the accused is responsible for inflicting the fatal injuries upon the deceased. PW1 stated that he heard a quarrel between the deceased and the accused and they were threatening to kill each other. That the accused was demanding for a gas cylinder which the deceased refused to give him and the accused told him that it had been given to him by his mother. He stated that he also heard the accused demanding for money from his father who told him that he had already given him Kshs.1,000/= earlier and that whatever remained was for the accused’s brother. PW3, PW4 and PW7 went to the scene after being prompted by PW1 and they did not know what led to the death of the deceased. The investigating officer stated that some of the people who saw the accused at Kigumo market with the deceased refused to record their statements.
  3. In his defense, DW1 stated that the deceased gave him Kshs.1,000/= while they were sitting at a bar. He stated that he was with the deceased earlier in the evening when he brought meat for him to cook. That he went to get milk at 8PM and at 9PM, he left with DW2 to go to a club called Personality and they were joined by 2 lady friends called Mercy and Joy at about midnight. DW2 stated that while on the way to personality bar, they met their 2 female friends with whom they went to Personality bar and then to Greengarden and that they spent the night with the two female friends.
  4. This alibi is inconsistent and does not truthfully explain the accused’s whereabouts that night. The accused also did not call the lady named Mercy as a witness he alleged he spent the night with at a lodging and there were no receipts to show for it. It is trite that if  an accused person is  relying on alibi, it should be raised early enough, preferably before the close of the prosecution’s case in order to allow the prosecution to interrogate it. Alibi defense should also be considered alongside all the other evidence wholesomely. These were the sentiments of the court in the case of Victor Mwendwa Mulinge vs. Republic (2014) eKLR where the Court of Appeal stated the following on the issue of alibi:-

“It is trite law that the burden of proving the falsity, if at all, of an accused’s defence of alibi lies on the prosecution, see also Karanja v. Republic (1983) KLR 501 where the court held that in a proper case a trial court may, in testing a defence of alibi and in weighing it with all other evidence to see if the accused’s guilt is established beyond all reasonable doubt, take into account the fact that he had not put forward his defence of alibi at an early stage in the case so that it can be tested by those responsible for investigation and thereby prevent any suggestion that the defence was an afterthought.”

  1. Given that there is no direct evidence placing the accused person at he scene, this court will consider circumstantial evidence. PW1 stated that he lives about 10 meters from the deceased and he heard the accused and the deceased quarrelling earlier that evening but later in the night, he was awoken by a loud bang at around midnight. When he went to check, he found the deceased lying at his doorway with the door open. He went to call PW7 who in turn called PW3 and PW4. At the scene, they found the deceased lying in a pool of blood. The police went to the scene, processed it and removed the body of the deceased.
  2. PW1 and DW1 both testified that the deceased was living in that house with the accused alone since the deceased’s wife had left him for about 1 year. PW1 stated that while they were at the scene that night, they heard a phone ringing from outside the house and PW3 went and found it was the accused’s phone which he placed on the stool in the deceased’s house. DW1 stated that he had left his phone charging in the deceased’s house when he left with DW2. PW1 stated that while they were at the scene, the accused returned at around 4AM saying that he was at Karurumo. The investigating officer stated that he did not recover any murder weapon from the house neither did he find any blood inside the house.
  3. In my view, and having found that the accused’s alibi is untruthful, it is my view that from the circumstantial evidence, the accused was present at the scene that night and he inflicted fatal injuries upon the deceased.
  4. The next issue  to establish is whether from the evidence, the accused bore malice aforethought. In the case of Republic v Stephen Sila Wambua Matheka [2017] eKLR it was held;

“The courts in interpreting the provisions of section 206 have stated as such in various authorities. In the classic case of Republic v Tubere S/O Ochen [1945] 12 EACA 63 the court held that an inference of malice aforethought can be established by considering the nature of the weapon used, the part of the body targeted, the manner in which the weapon was used and the conduct of the accused before, during and after the attack. In Ogelo v Republic [2004] 2KLR 14 the appellant in this case chased the deceased and another. He caught up with the deceased and stabbed him with a knife on the chest. The deceased died of the stab wounds. The court held interalia that by dint of section 206 (1) an intention to cause death or grievous harm malice aforethought is deemed to have been established by evidence presented by the prosecution. Malice aforethought can also be inferred from the manner of killing. See the case of Ernest Bwire Abanga Onyango v Republic [1990] Cr. Appeal No. 32 of 1990. The principle here as enunciated under section 206 and the authorities is the fact of establishing by evidence that the accused conceived the criminal mind before converting that in the mind into acts of omission to commit the murder.

  1. PW5 stated that fatal wound was inflicted on the deceased by a sharp object. The investigating officer stated that no murder weapon was recovered. However, this does not deter the court from inferring malice from the nature of injuries inflicted upon the deceased. PW5 detailed the injuries sustained and stated that the deceased suffered massive blood loss as a result of the stab wound on the femoral triangle as a consequence of which he bled to death. Given the altercation between the accused and the deceased immediately prior to his death, it is my view that the offence was committed with malice aforethought.
  2. Therefore, I find that the prosecution has proved the offence against the accused person beyond reasonable doubt. This court finds him guilty of the offence of murder contrary to section 203 of the Penal Code, and hereby convicts him accordingly.
  3. It is so ordered.

Delivered, dated and signed at Embu this 9th day of October, 2024.


    The Republic VS KENNEDY WACHIRA IRERI The Republic VS KENNEDY WACHIRA IRERI