' <> <><>><><>><><>><><>><><>><><>=><><>><><> <>><><><>><>><>>, ><>> <><>>. >> ><>><>><><>><><><>> ><> ><> ><>><> <><><><>>, ><>><>“> > <><>“> >> ><>>“> ><>><>>”. ><>><>><><><>> ><> >>, ><>><><><>> ><>><> <><>><><><>> >>>>, >> ><>><>>> ><>><>><>><><>><> ><>> ><><>> Penal Code defines the offence of murder as follows:
“ Any person who, of malice aforethought, causes the death of another person by an unlawful act or omission is guilty of murder.”
26. Arising from the foregoing, the ingredients of murder were explained in the case of ROBA GALMA WARIO VS. REPUBLIC [2015] eKLR, where the court held that:
“For the conviction of murder to be sustained, it is imperative to prove that the death of the deceased was caused by the appellant, and that he had the required malice aforethought. Without malice aforethought, the appellant would be guilty of manslaughter, as it would mean the death of the deceased during the brawl was not intentional.”
27. In REPUBLIC VS. MOHAMMED DADI KOKANE & & 7 OTHERS [2014] eKLR, the elements of the offence of murder were listed by M. Odero, J as follows: -
1) The fact of the death of the deceased.
2) The cause of such death.
3) Proof that the deceased met his death as a result of an unlawful act or omission on the part of the accused persons, and lastly
4) Proof that said unlawful act or omission was committed with malice aforethought.
28. In Mombasa High Court Case Number 42 of 2009 between REPUBLIC VS. DANIEL MUSYOKA MUASYA, PAUL MUTUA MUSYA, AND WALTER OTIENO OJWANG , the court expressed itself as hereunder:
“ The prosecution, therefore, is required to tender sufficient proof of the following three crucial ingredients in order to establish a charge of murder:
Proof of the fact as well as the cause of the death of the deceased persons.
Proof that the death of the deceased resulted from an unlawful act or omission on the part of the accused persons.
c) Proof that such unlawful act or omission was committed with malice aforethought.”
29. I will now proceed to interrogate each issue.
The death of the deceased and its cause.
30. It is common ground that GEOFFREY BUTIGI died on the 22.03.2021 at Mukuyi village, having sustained a penetrating stab wound on the left posterior chest area, which perforated the deceased''s lung and heart. PW1, PW2 witnessed the fight, which led to the deceased sustaining the fatal injuries, and PW4 also visited the scene after it was reported to the police and documented the same.
31. PW5 Dr Peter Ndegwa carried out the autopsy examination and established that the cause of death was due to exsanguination caused by severe chest injury inflicted by sharp force trauma. The fact and cause of death were thus established.
Whether it has been proved that the accused committed the unlawful act which caused the death of the deceased:
PW1 and PW2 were both present when the accused was attacked at his residential dwelling at Mukuyi Village by the deceased and his colleague, who accused him of stealing a Gas cylinder (Meko), hoofer, and shoes. The assailants forcefully entered the accused''s house in search of the missing items before they started to assault him. In defence, the accused person fought back, and unfortunately, it resulted in the deceased sustaining a fatal stab wound.
The accused person, when placed on his defence, largely affirmed PW1 and PW2 versions of events, but maintained that the deceased''s injury was inadvertently sustained as he defended himself from the onslaught faced from the deceased and the other assailants. He did not intentionally set out to hurt/stab the deceased, nor did he intend to kill him. He had acted in self-defence upon being attacked.
Based on the undisputed evidence adduced by the prosecution, and confirmed by the accused, it has been proved that it is the accused who committed the unlawful act which caused the death of the deceased:
(iii) Malice Aforethought
Having found that the prosecution has proved actus reus , the other issue for determination is whether malice aforethought can be inferred from the prosecution''s evidence presented. The offence of murder is complete when “malice aforethought” is established. Section 206 of the Penal Code provides that:
(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.”
It is sufficient to say that the mental element required by section 206 of the Penal Code can be equated to broad guidelines set out in the case of Tubere s/o Ochen vs. Republic [1945] 12 EACA 63:
“ The weapon in possession of the accused while carrying out the intention, the manner in which it was used to strike the human being whether one off blow or violent multiple blows, the conduct of the accused in fleeing from the scene afterwards, the permanency or dangerous severity of the bodily harm and that cumulatively the death of the deceased must ensue from the bodily harm intentionally inflicted.”
In the case of Republic v Okwara (Criminal Case E015 of 2023) [2024] KEHC 1360 (KLR) , the court stated as follows;
“ Mens rea in murder causes takes the form of malice aforethought, and the elements are set out in section 206 of the Penal Code. They relate to intention and knowledge. Intention to kill or cause grievous harm or to commit a felony. Knowledge that the act or omission causing death could cause such death, and being indifferent to the consequences of the act or omission. Intention and knowledge are mental elements. One forms an intention, in their mind, to do or not to do something, and has knowledge, within his mental faculties, about something. So, the mental element for the offence of murder is either intention or knowledge.
Has the prosecution adduced evidence to establish such intention or knowledge that the accused had formed an intention to kill or cause grievous harm or to commit a felony, or knew that whatever he was doing was likely to cause death, but remained indifferent to the consequences? Well, the mens rea of an offence is usually to be inferred from conduct or action, being a mental element, unless the intention is voiced by the perpetrator.”
Therefore, in assessing the weight to be given to intention as an element of murder, the relevant circumstances must be considered as to whether the appellant foresaw the real or substantial risk and the consequences of targeting the part of the body that may result in the fatal injuries suffered by the deceased.
The accused counsel submitted that there was no malice aforethought established, as the accused had to defend himself, having been attacked by three armed assailants, while at his house, and as a result of this confrontation, the deceased sustained a single fatal stab wound. Reliance was placed on section 17 of the penal code , which incorporated the common law principles of self-defence, and as such urged the court to find that the accused had acted lawfully.
Section 17 of the Penal Code provides that:-
“Subject to any express provisions in this code or any other law in operation in Kenya, criminal responsibility for the use of force in the defence of person or property shall be determined according to the principles of the English common law.”
The Common law principles relating to “self-defence” was pronounced in the Privy Council case Palmer v R (1971) A.C 814, which decision was approved by the Court of Appeal in R v McINNES, 55 Cr App. R. 551 , Lord Morris, while delivering the judgment of the board, stated that;
“It is good law and good sense that a man who is attacked may defend himself. It is both good law and common sense that he may do so, but may only do what is reasonably necessary. But everything will depend upon the particular facts and circumstances… Some attacks may be serious and dangerous, while others may not. If there is some relatively minor attack, it would not be common sense to permit some act of retaliation which was wholly out of proportion to the necessities of the situation. If an attack is serious so that it puts someone in immediate peril, then immediate defensive action may be necessary.
If the moment is one of crisis for someone in immediate danger, he may have to avert the danger by some instant reaction. If the attack is over and no sort of peril remains, then the employment of force may be a way of revenge or punishment, or by way of paying off an old score, or maybe pure aggression. There may no longer be any link with a necessity of defence… The defence of self-defence either succeeds so as to result in an acquittal or it is disproved, in which case, as a defence, it is rejected. In a homicide case, the circumstances may be such that it will become an issue as to whether there was provocation, so that the verdict might be one of manslaughter. Any other possible issue will remain. If in any case the view is possible that the intent necessary to constitute the crime of murder was lacking, then the matter would be left to the jury.”
In Robert Kinuthia Mungai V Republic (1982-88) 1KAR 611 , the court, having reviewed several English and local authorities, established that ;
“… We think, in view of the earlier East African cases we have considered, and the more recent English decision in R v SHANNON CRIM LR 438, 1980, that, the true interpretation of the judgment of the privy council in PALMER v R is that while there is no rule that excessive force in defence of the person will in all cases lead to a verdict of manslaughter, there are nevertheless instances where that result is a proper one in the circumstances and on the facts of the case being considered.”
The prosecution evidence led by PW1 and PW2 confirmed that the accused was attacked, while at his house, by the deceased and his friend, and the resultant fight led to the unfortunate demise of the deceased. PW2, further confirmed that the two fought outside the accused''s house, which fight continued into a maize plantation, which was about 30m away from the dwelling house, and at some point heard the deceased cry out, stating that,
“ Waka, umenidunga, naomba uniache niende nikufe kwangu … During the fight, the accused too had a knife, which had been identified as MFI-P2. ”
The accused in defence added a third assailant to the scene and further stated that when the assailants started to assault him, PW1 was cutting sukuma wiki within the house and that the deceased had made a dash for the kitchen knife which PW1 had left on the table. Reflectively, he had reacted quickly and held the deceased''s hands, as a struggle ensued to prevent the deceased from attacking him using the said knife.
The push and pull went on until they both fell outside his front door, and it was at that point that he realized that the deceased had fallen on the said knife and injured himself. The two other assailants, in shock, took off, and the deceased too stumbled trying to get away, but fell about 30m away from his door. The accused insisted that he acted in self-defence and had no intention to harm the deceased.
The accused''s evidence must be taken with a pinch of salt, as his version of events does not tally with that of the other eyewitnesses. He introduced a third assailant, who obviously was not at the scene, and contradicted PW1 and PW2, who were categorical that the fight occurred outside the house and that both the accused and the deceased were armed with their respective knives.
To emphasize this fact, PW4 CI Peter Mikisi , the investigating officer, visited the scene and found the first blood-stained knife (Exhibit P2 - Knife with the orange handle) about 10 meters from the body, while the second knife (Exhibit P1 - Knife with the metallic handle) was located approximately 30 meters from the body. PW2, in his evidence in chief testimony, confirmed that the deceased had removed the knife with the metallic handle (Exhibit P1) from his gumboots, which then logically dictates that the knife used to stab the deceased was the one the defendant took from his house. The government analysist PW3 confirmed as much in his DNA report dated 17.03.2022, which was produced as Exhibit 6.
Be that as it may, the facts herein point to a scenario where both parties, armed with knives, fought, and as a result, one party sustained a fatal stab wound to his posterior chest. While under normal circumstances, the accused should have known that such a stab wound would lead instant death, he was obviously facing a life and death scenario and could not be said to have intentionally aimed to kill the deceased.
In R v McINNES, 55 Cr App.R.551 , Lord Morris emphasized that;
“… The defence of self-defence either succeeds so as to result in acquittal or it is disproved, in which case, as a defence, it is rejected. In a homicide case, the circumstances may be such that it will become an issue as to whether there was provocation so that the verdict might be one of manslaughter.”
In R v Williams (1987) 3 ALL, ER 411, Lord Lane CJ did hold that:-
“in a case of self defence, where self defence or the prevention of crime is concern, if the jury comes to the conclusion that the defendant believed, or may have believed, that he was being attacked or that a crime was being committed, and that force was necessary to protect himself or to prevent crime, then the prosecution have not proved their case. If, however, the defendant''s alleged belief was mistaken and if the mistake was an unreasonable one, that may be a powerful reason for coming to the conclusion that the belief was not honestly held and should be rejected. Even if the jury comes to the conclusion that the mistake was unreasonable one, if the defendant may genuinely have been laboring under it, he is entitled to rely on it.”
G. DISPOSITION
In the circumstances herein, I am persuaded beyond reasonable doubt that the accused person was attacked by two men, armed with a wooden stick (fimbo) and a knife. It is the said assailants, who started to assault him, and that his employment of force was necessary to protect himself. Accordingly, his defence of self-defence succeeds, and he is acquitted of the charge faced.
The accused person shall be set free, unless otherwise lawfully held.
It is so Ordered.
JUDGMENT, SIGNED and DELIVERED at KIAMBU this 2ND day of OCTOBER, 2025.
FRANCIS RAYOLA OLEL
JUDGE
Judgment read and delivered in open court on this 2ND day of OCTOBER 2025.
In the presence of:-
……………………………….…………………..Accused
……………………….……………….……….For O.D.P.P
…………………………………………….Court Assistant
'
“ Any person who, of malice aforethought, causes the death of another person by an unlawful act or omission is guilty of murder.”
26. Arising from the foregoing, the ingredients of murder were explained in the case of ROBA GALMA WARIO VS. REPUBLIC [2015] eKLR, where the court held that:
“For the conviction of murder to be sustained, it is imperative to prove that the death of the deceased was caused by the appellant, and that he had the required malice aforethought. Without malice aforethought, the appellant would be guilty of manslaughter, as it would mean the death of the deceased during the brawl was not intentional.”
27. In REPUBLIC VS. MOHAMMED DADI KOKANE & & 7 OTHERS [2014] eKLR, the elements of the offence of murder were listed by M. Odero, J as follows: -
1) The fact of the death of the deceased.
2) The cause of such death.
3) Proof that the deceased met his death as a result of an unlawful act or omission on the part of the accused persons, and lastly
4) Proof that said unlawful act or omission was committed with malice aforethought.
28. In Mombasa High Court Case Number 42 of 2009 between REPUBLIC VS. DANIEL MUSYOKA MUASYA, PAUL MUTUA MUSYA, AND WALTER OTIENO OJWANG , the court expressed itself as hereunder:
“ The prosecution, therefore, is required to tender sufficient proof of the following three crucial ingredients in order to establish a charge of murder:
Proof of the fact as well as the cause of the death of the deceased persons.
Proof that the death of the deceased resulted from an unlawful act or omission on the part of the accused persons.
c) Proof that such unlawful act or omission was committed with malice aforethought.”
29. I will now proceed to interrogate each issue.
The death of the deceased and its cause.
30. It is common ground that GEOFFREY BUTIGI died on the 22.03.2021 at Mukuyi village, having sustained a penetrating stab wound on the left posterior chest area, which perforated the deceased''s lung and heart. PW1, PW2 witnessed the fight, which led to the deceased sustaining the fatal injuries, and PW4 also visited the scene after it was reported to the police and documented the same.
31. PW5 Dr Peter Ndegwa carried out the autopsy examination and established that the cause of death was due to exsanguination caused by severe chest injury inflicted by sharp force trauma. The fact and cause of death were thus established.
Whether it has been proved that the accused committed the unlawful act which caused the death of the deceased:
PW1 and PW2 were both present when the accused was attacked at his residential dwelling at Mukuyi Village by the deceased and his colleague, who accused him of stealing a Gas cylinder (Meko), hoofer, and shoes. The assailants forcefully entered the accused''s house in search of the missing items before they started to assault him. In defence, the accused person fought back, and unfortunately, it resulted in the deceased sustaining a fatal stab wound.
The accused person, when placed on his defence, largely affirmed PW1 and PW2 versions of events, but maintained that the deceased''s injury was inadvertently sustained as he defended himself from the onslaught faced from the deceased and the other assailants. He did not intentionally set out to hurt/stab the deceased, nor did he intend to kill him. He had acted in self-defence upon being attacked.
Based on the undisputed evidence adduced by the prosecution, and confirmed by the accused, it has been proved that it is the accused who committed the unlawful act which caused the death of the deceased:
(iii) Malice Aforethought
Having found that the prosecution has proved actus reus , the other issue for determination is whether malice aforethought can be inferred from the prosecution''s evidence presented. The offence of murder is complete when “malice aforethought” is established. Section 206 of the Penal Code provides that:
(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.”
It is sufficient to say that the mental element required by section 206 of the Penal Code can be equated to broad guidelines set out in the case of Tubere s/o Ochen vs. Republic [1945] 12 EACA 63:
“ The weapon in possession of the accused while carrying out the intention, the manner in which it was used to strike the human being whether one off blow or violent multiple blows, the conduct of the accused in fleeing from the scene afterwards, the permanency or dangerous severity of the bodily harm and that cumulatively the death of the deceased must ensue from the bodily harm intentionally inflicted.”
In the case of Republic v Okwara (Criminal Case E015 of 2023) [2024] KEHC 1360 (KLR) , the court stated as follows;
“ Mens rea in murder causes takes the form of malice aforethought, and the elements are set out in section 206 of the Penal Code. They relate to intention and knowledge. Intention to kill or cause grievous harm or to commit a felony. Knowledge that the act or omission causing death could cause such death, and being indifferent to the consequences of the act or omission. Intention and knowledge are mental elements. One forms an intention, in their mind, to do or not to do something, and has knowledge, within his mental faculties, about something. So, the mental element for the offence of murder is either intention or knowledge.
Has the prosecution adduced evidence to establish such intention or knowledge that the accused had formed an intention to kill or cause grievous harm or to commit a felony, or knew that whatever he was doing was likely to cause death, but remained indifferent to the consequences? Well, the mens rea of an offence is usually to be inferred from conduct or action, being a mental element, unless the intention is voiced by the perpetrator.”
Therefore, in assessing the weight to be given to intention as an element of murder, the relevant circumstances must be considered as to whether the appellant foresaw the real or substantial risk and the consequences of targeting the part of the body that may result in the fatal injuries suffered by the deceased.
The accused counsel submitted that there was no malice aforethought established, as the accused had to defend himself, having been attacked by three armed assailants, while at his house, and as a result of this confrontation, the deceased sustained a single fatal stab wound. Reliance was placed on section 17 of the penal code , which incorporated the common law principles of self-defence, and as such urged the court to find that the accused had acted lawfully.
Section 17 of the Penal Code provides that:-
“Subject to any express provisions in this code or any other law in operation in Kenya, criminal responsibility for the use of force in the defence of person or property shall be determined according to the principles of the English common law.”
The Common law principles relating to “self-defence” was pronounced in the Privy Council case Palmer v R (1971) A.C 814, which decision was approved by the Court of Appeal in R v McINNES, 55 Cr App. R. 551 , Lord Morris, while delivering the judgment of the board, stated that;
“It is good law and good sense that a man who is attacked may defend himself. It is both good law and common sense that he may do so, but may only do what is reasonably necessary. But everything will depend upon the particular facts and circumstances… Some attacks may be serious and dangerous, while others may not. If there is some relatively minor attack, it would not be common sense to permit some act of retaliation which was wholly out of proportion to the necessities of the situation. If an attack is serious so that it puts someone in immediate peril, then immediate defensive action may be necessary.
If the moment is one of crisis for someone in immediate danger, he may have to avert the danger by some instant reaction. If the attack is over and no sort of peril remains, then the employment of force may be a way of revenge or punishment, or by way of paying off an old score, or maybe pure aggression. There may no longer be any link with a necessity of defence… The defence of self-defence either succeeds so as to result in an acquittal or it is disproved, in which case, as a defence, it is rejected. In a homicide case, the circumstances may be such that it will become an issue as to whether there was provocation, so that the verdict might be one of manslaughter. Any other possible issue will remain. If in any case the view is possible that the intent necessary to constitute the crime of murder was lacking, then the matter would be left to the jury.”
In Robert Kinuthia Mungai V Republic (1982-88) 1KAR 611 , the court, having reviewed several English and local authorities, established that ;
“… We think, in view of the earlier East African cases we have considered, and the more recent English decision in R v SHANNON CRIM LR 438, 1980, that, the true interpretation of the judgment of the privy council in PALMER v R is that while there is no rule that excessive force in defence of the person will in all cases lead to a verdict of manslaughter, there are nevertheless instances where that result is a proper one in the circumstances and on the facts of the case being considered.”
The prosecution evidence led by PW1 and PW2 confirmed that the accused was attacked, while at his house, by the deceased and his friend, and the resultant fight led to the unfortunate demise of the deceased. PW2, further confirmed that the two fought outside the accused''s house, which fight continued into a maize plantation, which was about 30m away from the dwelling house, and at some point heard the deceased cry out, stating that,
“ Waka, umenidunga, naomba uniache niende nikufe kwangu … During the fight, the accused too had a knife, which had been identified as MFI-P2. ”
The accused in defence added a third assailant to the scene and further stated that when the assailants started to assault him, PW1 was cutting sukuma wiki within the house and that the deceased had made a dash for the kitchen knife which PW1 had left on the table. Reflectively, he had reacted quickly and held the deceased''s hands, as a struggle ensued to prevent the deceased from attacking him using the said knife.
The push and pull went on until they both fell outside his front door, and it was at that point that he realized that the deceased had fallen on the said knife and injured himself. The two other assailants, in shock, took off, and the deceased too stumbled trying to get away, but fell about 30m away from his door. The accused insisted that he acted in self-defence and had no intention to harm the deceased.
The accused''s evidence must be taken with a pinch of salt, as his version of events does not tally with that of the other eyewitnesses. He introduced a third assailant, who obviously was not at the scene, and contradicted PW1 and PW2, who were categorical that the fight occurred outside the house and that both the accused and the deceased were armed with their respective knives.
To emphasize this fact, PW4 CI Peter Mikisi , the investigating officer, visited the scene and found the first blood-stained knife (Exhibit P2 - Knife with the orange handle) about 10 meters from the body, while the second knife (Exhibit P1 - Knife with the metallic handle) was located approximately 30 meters from the body. PW2, in his evidence in chief testimony, confirmed that the deceased had removed the knife with the metallic handle (Exhibit P1) from his gumboots, which then logically dictates that the knife used to stab the deceased was the one the defendant took from his house. The government analysist PW3 confirmed as much in his DNA report dated 17.03.2022, which was produced as Exhibit 6.
Be that as it may, the facts herein point to a scenario where both parties, armed with knives, fought, and as a result, one party sustained a fatal stab wound to his posterior chest. While under normal circumstances, the accused should have known that such a stab wound would lead instant death, he was obviously facing a life and death scenario and could not be said to have intentionally aimed to kill the deceased.
In R v McINNES, 55 Cr App.R.551 , Lord Morris emphasized that;
“… The defence of self-defence either succeeds so as to result in acquittal or it is disproved, in which case, as a defence, it is rejected. In a homicide case, the circumstances may be such that it will become an issue as to whether there was provocation so that the verdict might be one of manslaughter.”
In R v Williams (1987) 3 ALL, ER 411, Lord Lane CJ did hold that:-
“in a case of self defence, where self defence or the prevention of crime is concern, if the jury comes to the conclusion that the defendant believed, or may have believed, that he was being attacked or that a crime was being committed, and that force was necessary to protect himself or to prevent crime, then the prosecution have not proved their case. If, however, the defendant''s alleged belief was mistaken and if the mistake was an unreasonable one, that may be a powerful reason for coming to the conclusion that the belief was not honestly held and should be rejected. Even if the jury comes to the conclusion that the mistake was unreasonable one, if the defendant may genuinely have been laboring under it, he is entitled to rely on it.”
G. DISPOSITION
In the circumstances herein, I am persuaded beyond reasonable doubt that the accused person was attacked by two men, armed with a wooden stick (fimbo) and a knife. It is the said assailants, who started to assault him, and that his employment of force was necessary to protect himself. Accordingly, his defence of self-defence succeeds, and he is acquitted of the charge faced.
The accused person shall be set free, unless otherwise lawfully held.
It is so Ordered.
JUDGMENT, SIGNED and DELIVERED at KIAMBU this 2ND day of OCTOBER, 2025.
FRANCIS RAYOLA OLEL
JUDGE
Judgment read and delivered in open court on this 2ND day of OCTOBER 2025.
In the presence of:-
……………………………….…………………..Accused
……………………….……………….……….For O.D.P.P
…………………………………………….Court Assistant
'