A. INTRODUCTION AND BACKGROUND
1. The accused person, Peter Kababe Ndege, was charged with the offence of murder contrary to section 203 as read with section 204 of the Penal Code.
2. The particulars of the charge were that on 28th December 2023 at Gotichaki Village, Getembe Sub-Location, Nyansore Location, Nyamarambe Division, in Gucha South Sub-County within Kisii County, he murdered Kennedy Oroo Makori alias Obote Kenyatta.
3. Upon arraignment on 19th January 2024, the accused was found unfit to plead on the basis of a psychiatric assessment dated 12th January 2024 from Nduru Sub-County Hospital. The court consequently directed that he be escorted to Kisii County Referral Hospital for treatment and psychiatric review. A subsequent report dated 22nd January 2024 indicated that he was fit to plead, whereupon plea was eventually taken.
4. The accused pleaded not guilty to the charge.
5. The prosecution called nine (9) witnesses, while the accused gave unsworn testimony in his defence and called no witness.
B. THE PROSECUTION CASE
7. PW1, Josephine Moraa, a 16-year-old daughter of PW2, testified that on 28th December 2023 at about 7.00 p.m., she was at home with her mother when she heard a quarrel on the road. She heard the name “Kebabe” being mentioned and screams from one “Oboti.” Upon being sent by her mother to check what was happening, she saw the accused standing near their gate holding a long knife. She later saw the deceased lying on the road with blood on his chest. She identified the accused in court and also identified the knife recovered as the one she had seen in his hand.
8. On cross-examination, PW1 admitted that she did not witness the actual stabbing. She, however, maintained that shortly after the screams, she saw the accused near the scene holding a knife in his right hand.
9. PW2, Hellen Moraa Mamboleo, the mother of PW1, testified that on the same evening she heard screams from the road. She rushed out and found the deceased lying on the road with a stab wound on the chest, while the accused was bending over him. According to her, the accused chased her away while hurling insults in Ekegusii. She fainted and was later taken to Nyamarambe Hospital. She stated that she had known the accused for about nine years and had no previous disagreement with him. She also observed that he appeared drunk on the material day.
10. On cross-examination, PW2 stated that although it was getting dark, visibility was still sufficient for her to recognize the accused. She confirmed that she did not witness the actual stabbing but found the accused immediately next to the deceased moments thereafter.
11. PW3, Consolata Kerubo, the widow of the deceased, testified that at about 7.00 p.m. she heard commotion and was informed by PW1 that the accused had stabbed her husband. She rushed to the scene and met the accused walking towards his home. She found her husband already dead with blood on his chest. She attended the post-mortem examination on 2nd January 2024, during which the doctor confirmed that death had been caused by a stab wound to the heart. She stated that the accused and the deceased had no known prior quarrel.
12. PW4, Wilson Omari Kebabe, the son of the accused, testified that on the same evening at around 7.30 p.m., he was informed that his father had stabbed “Obote.” He went to the scene and found the body of the deceased lying on the road. He was told that the accused had been subjected to mob justice and was injured. He found his father outside their home, injured, and upon police instructions, took him to hospital before presenting him to Nyamarambe Police Station, where he was arrested. He testified that both the deceased and the accused were known to consume alcohol, and that there had been no known dispute between them.
13. PW5, Justus Oranga Mauti, a nephew of the deceased, testified that at about 7.00 p.m. he heard screams and was informed that the accused had stabbed his uncle. He went to the scene and found the deceased lying on the road bleeding from the chest. The body was later moved to Tabaka Hospital Mortuary. He attended the post-mortem examination and confirmed the doctor’s finding that the cause of death was a stab wound to the heart.
14. PW6, Inspector Robai Masika, who testified on behalf of Chief Inspector Fredrick Sirengo, the Scene of Crime Officer, produced six photographs of the scene and the body of the deceased, together with a certificate of print. The photographs showed the deceased lying at the scene with visible injuries, including a stab wound and other marks on the body.
15. PW7, Dr. Naomi Ariaga, a pathologist at Kisii Teaching and Referral Hospital, performed the post-mortem on 2nd January 2024 at Tabaka Mission Hospital. She found a stab wound measuring 2 cm at the 3rd intercostal space, a tear in the 4th intercostal muscle, tear of the pericardium, haematoma in the pericardial cavity, and lacerations on both the right and left ventricles of the heart. She concluded that the cause of death was cardiac tamponade secondary to laceration of the heart due to sharp force trauma. She produced the post-mortem report in evidence. On cross-examination, she stated that the injuries on the elbows appeared to be defensive in nature.
16. PW8, Chief Brian Oteyo, the area chief, testified that at about 7.30 p.m. he received information from a clan elder and the assistant chief that the accused had stabbed the deceased to death. He went to the scene and found the deceased lying down with an unbuttoned shirt and a fresh stab wound on the chest. He reported the matter to Marani DCI. Police later came to the scene. He was informed that the accused had been subjected to mob justice and was lying injured outside his house. The accused was thereafter taken to hospital by police. He knew of no previous conflict between the deceased and the accused.
17. PW9, PC Anthony Kiragu, the investigating officer, testified that at about 8.00 p.m. he received information from the chief that a person had been stabbed to death at Gotichaki Village. He proceeded to the scene with his superiors and found the body of the deceased with a visible stab wound on the left side of the chest, abrasions on the knees, a cut wound on the left index finger, and bite marks on the left elbow and right forearm. He was informed that the accused had fled to a sorghum farm where members of the public traced him and assaulted him. The accused was taken to Nduru Level 4 Hospital for treatment and later detained at Nyamarambe Police Station.
18. PW9 further testified that on 29th December 2023, he revisited the scene and recovered a blood-stained knife with a black plastic handle a few metres from the accused’s hideout in the sorghum plantation. He attended the post-mortem examination on 2nd January 2024 and thereafter forwarded the file to the Office of the Director of Public Prosecutions, which directed that the accused be charged with murder.
19. In cross-examination, PW9 admitted that it was dark when they arrived at the scene. He also stated that the sorghum plantation appeared disturbed, suggesting that many people had been there, and conceded that he could not conclusively tell who had placed the knife where it was found. He further admitted that blood samples had been taken for DNA analysis but no report was produced. He confirmed that the accused had injuries on the scalp and legs consistent with mob justice.
C. THE DEFENCE CASE
20. In his unsworn defence, the accused denied the offence. He stated that on 28th December 2023 he had gone out to look for food for his children through casual labour. He returned home in the evening and was informed by his children that someone had been killed. He stated that the deceased lived in Nairobi and did business in Nyahururu, and that they had been on good terms. He denied meeting the deceased on the material day and stated that the following day he went to the police station where he was arrested.
21. The defence filed written submissions in which it questioned whether the prosecution had proved the charge beyond reasonable doubt and also raised the issue of insanity based on the psychiatric report dated 12th January 2024.
D. ISSUES FOR DETERMINATION
22. Having considered the evidence and the submissions on record, the issues arising for determination are:
a. Whether the fact and cause of death were proved;
b. Whether the death was caused by an unlawful act;
c. Whether the accused was the person who caused the death;
d. Whether malice aforethought was established;
e. Whether the defence of insanity or any other defence avails the accused;
f. Whether the prosecution proved its case beyond reasonable doubt.
E. LEGAL FRAMEWORK
23. Section 203 of the Penal Code provides:
“Any person who of malice aforethought causes the death of another person by an unlawful act or omission is guilty of murder.”
24. Section 206 of the Penal Code sets out circumstances in which malice aforethought may be deemed established, including intention to cause death or grievous harm, or knowledge that the act will probably cause death or grievous harm.
25. The burden of proof in criminal cases rests on the prosecution throughout. In Woolmington v DPP [1935] AC 462, it was stated that the duty of proving the prisoner’s guilt lies upon the prosecution. The same principle was reaffirmed in Pius Arap Maina v Republic [2013] eKLR, where the Court of Appeal held that any material gaps in the prosecution case must be resolved in favour of the accused.
26. For the offence of murder to be proved, the prosecution must establish:
i. the fact of death and the cause thereof;
ii. that the death was caused by an unlawful act or omission;
iii. that it was the accused who caused the death; and
iv. that the accused acted with malice aforethought.
F. ANALYSIS
(i) Whether the death of the deceased and the cause thereof were proved
27. The fact of death was proved beyond question. Several witnesses, including PW3, PW4, PW5, PW8 and PW9, saw the deceased’s body at the scene on the night of 28th December 2023.The medical evidence was tendered by PW7, Dr. Naomi Ariaga, whose post-mortem findings were clear and consistent. She found a penetrating stab wound to the chest which caused tears to the pericardium and both ventricles of the heart, resulting in cardiac tamponade secondary to sharp force trauma.The post-mortem report was produced without objection and corroborated the observations of the witnesses at the scene.I therefore find that the prosecution proved beyond reasonable doubt that Kennedy Oroo Makori alias Obote Kenyatta died on 28th December 2023, and that the cause of death was cardiac tamponade secondary to laceration of the heart due to sharp force trauma.
(ii) Whether the death was unlawful
28. A stab wound penetrating the chest and heart is plainly unlawful unless justified by law, for example in self-defence or other excusable circumstances. No such evidence was placed before the court.
29. The nature, location and severity of the injury point to a deliberate assault. I therefore find that the death of the deceased was caused by an unlawful act.
(iii) Whether the accused caused the death of the deceased
30. No witness saw the actual moment of stabbing. The prosecution case therefore rests on recognition evidence and circumstantial evidence.
31. The law on circumstantial evidence is settled. In Rex v Kipkering Arap Koske & Another [1949] 16 EACA 135, the Court held that the inculpatory facts must be incompatible with innocence and incapable of explanation upon any other reasonable hypothesis than that of guilt. In Simoni Musoke v R [1958] EA 715, and Abanga alias Onyango v Republic, Cr. App. No. 32 of 1990, the courts emphasized that the chain of circumstances must be complete and must unerringly point to the accused.
32. In the instant case, PW1 testified that after hearing commotion and screams, she saw the accused near the scene holding a long knife. She knew him well as a neighbour. PW2 testified that when she rushed to the scene moments later, she found the accused bending over the deceased, who had already been stabbed. PW3 met the accused leaving the scene and heading towards his home. All these were witnesses who knew the accused previously.
33. It is trite law that evidence of recognition is generally more reliable than identification of a stranger. In Abdalla Bin Wendo & Another v R [1953] 20 EACA 166, the Court observed that recognition may be more dependable where the witness is identifying someone known to him. In Wamunga v Republic [1989] KLR 424, the Court nonetheless cautioned that such evidence must still be tested carefully.
34. The defence challenged the reliability of recognition on the basis that the incident occurred at about 7.00 p.m. when darkness was setting in. I have considered that submission. The evidence of PW2, PW3 and PW8 was consistent that, although it was getting dark, it was not completely dark and one could still recognize a person at close range. The scene was only about five metres from PW2’s home. This was not identification of a stranger, but recognition of a neighbour known for years.
35. I am satisfied that the recognition evidence was reliable.
36. The prosecution case is further reinforced by a strong chain of circumstantial evidence, namely:
a. PW1 and PW2 heard a quarrel and screams immediately before the incident;
b. PW1 heard the name “Kebabe” being mentioned and saw the accused shortly thereafter holding a knife;
c. PW2 found the accused bending over the deceased immediately after the stabbing;
d. the accused chased PW2 away, thus exhibiting consciousness of wrongdoing;
e. PW3 met the accused leaving the scene;
f. the accused fled and hid in a sorghum plantation;
g. a blood-stained knife was later recovered a few metres from the accused’s hideout; and
h. there was no evidence of any other person being with the deceased at the material time.
37. In Republic v Ngugi s/o Kariuki [1952] 19 EACA 103, the Court held that unexplained flight may amount to evidence of consciousness of guilt. The accused’s conduct in fleeing the scene and hiding in the sorghum plantation is therefore a relevant circumstance.
38. The recovery of the blood-stained knife near the accused’s hideout is also significant. Although no DNA report was produced, the absence of scientific evidence is not necessarily fatal where there is otherwise cogent and credible evidence linking the accused to the offence.
39. I have also considered the defence argument that the knife was recovered the following day and that the plantation had been disturbed by many people. That is a factor warranting caution. However, when the recovery is considered together with the recognition evidence, the accused’s conduct at the scene, his immediate flight, and the absence of evidence implicating any other person, the totality of the evidence still forms a complete chain.
40. I am satisfied that the circumstantial evidence in this case is incompatible with the innocence of the accused and incapable of explanation upon any other reasonable hypothesis than his guilt.
41. I therefore find that the prosecution proved beyond reasonable doubt that it was the accused who caused the death of the deceased.
(iv) Whether malice aforethought was proved
42. Malice aforethought may be inferred from the nature of the weapon used, the part of the body targeted, the force applied, and the circumstances of the attack.
43. In this case, the weapon used was a knife, plainly a lethal weapon. The part of the body targeted was the chest, specifically the area of the heart, a most vulnerable and vital organ. The force used was sufficient to penetrate the chest wall, tear the pericardium, and lacerate both ventricles of the heart. Those injuries could only have been inflicted with considerable force.
44. The pathologist’s evidence that the deceased had defensive injuries on the elbows also suggests that the deceased attempted to ward off the attack.
45. In Republic v Tubere s/o Ochen [1945] 12 EACA 63, the Court held that malice aforethought may be inferred from the weapon used, the manner of its use, and the part of the body injured. The facts of this case fit squarely within that principle.
46. The accused’s conduct after the attack, namely chasing away PW2, fleeing the scene and hiding, also supports an inference that he knew the gravity of what he had done.
47. I therefore find that the prosecution proved malice aforethought beyond reasonable doubt.
(v) Whether the defence of insanity or any other defence avails the accused
48. The defence raised the issue of insanity on the strength of the psychiatric assessment dated 12th January 2024, which indicated that the accused had hallucinations, was unkempt, and was at that stage unfit to plead, with a diagnosis of drug-induced psychosis.
49. The applicable law is found in section 12 of the Penal Code, which provides that a person is not criminally responsible if, at the time of doing the act, he is through disease of the mind incapable of understanding what he is doing or of knowing that he ought not to do the act. R v M'Naghten [1843] 10 Cl & F 200, in which the House of Lords established the test for insanity, which has been adopted in Kenya. In that case it was held that ;
"To establish a defence on the ground of insanity, it must be clearly proved that, at the time of committing the act, the party accused was labouring under such a defect of reason, from disease of the mind, as not to know the nature and quality of the act he was doing, or if he did know it, that he did not know what he was doing was wrong."
50. The standard of proof of insanity is on a balance of probability as was held in the case Wakesho v Republic [2021] KECA 223 (KLR)
of to wit ‘’ Where, as here, it emerges from the evidence that the defence of insanity is in issue, (and the standard in that regard is on balance of probabilities) the prosecution is required to disprove it. (See Tadeo Oyee s/o Duru vs. R [1959] EA 407). We hold that the learned Judge ought to have made a special finding of guilty but insane.’’
51. Leonard Mwangemi Munyasia v Republic [2015] eKLR:it was held that ‘’is the duty oftrial courts, to inquire specifically into the question of insanity, not only in situations where such defence is raised but also where, as here, it becomes apparent to the court from the accused person’s history or antecedent that insanity may be an issue.’’
52. The critical inquiry is therefore the mental state of the accused at the time of the commission of the offence, not merely after arrest.
53. The psychiatric report relied on was prepared about two weeks after the incident. It addressed the accused’s state at the time of examination while in custody. A subsequent report dated 22nd January 2024 found him fit to plead.
54. There was no expert evidence demonstrating that at the time of the stabbing on 28th December 2023, the accused was labouring under such disease of the mind as to be incapable of understanding the nature of his act or of knowing that it was wrong. The4 report of 22.1.24 was not challenged
55. To the contrary, the accused’s conduct immediately after the incident points to awareness and comprehension of events. He quarrelled with the deceased, was seen at the scene with a knife, chased away PW2, fled from the scene, hid in a sorghum plantation, and was later able to give an account to PW4 and to present himself at the police station. Those actions are inconsistent with a mind incapable of appreciating the nature or wrongfulness of the act.
56. The evidence by PW2 and PW4 that the accused appeared drunk or that both men were known to drink does not, of itself, establish legal insanity. Nor was there evidence that intoxication was involuntary or that it rendered him legally insane within the meaning of the Penal Code.
57. I therefore find that the defence of insanity was not established.
58. As regards the accused’s unsworn denial, I have considered it fully. It amounts, however, to a bare denial which does not displace the strong recognition and circumstantial evidence adduced by the prosecution.
59. I therefore find that no defence was established.
(vi) Whether the prosecution proved its case beyond reasonable doubt
61. The standard of proof in criminal cases is proof beyond reasonable doubt. It does not mean proof beyond the shadow of a doubt, but such proof as leaves the court with no reasonable doubt as to guilt.
62. Upon a full review of the evidence, I am satisfied that the prosecution proved:
a. the death of the deceased and the cause thereof;
b. that the death was unlawful;
c. that it was the accused who inflicted the fatal injury;
d. that the accused acted with malice aforethought; and
e. that no lawful defence availed him.
63. The minor gaps pointed out by the defence, including the absence of DNA results and the fact that no one saw the actual stabbing, do not, in the circumstances of this case, create reasonable doubt. The prosecution evidence remained cogent, consistent and compelling.
G. CONCLUSION
64. Having carefully evaluated all the evidence on record, I make the following findings:
i. The death of Kennedy Oroo Makori alias Obote Kenyatta on 28th December 2023 was proved beyond reasonable doubt.
ii. The cause of death was cardiac tamponade secondary to laceration of the heart due to sharp force trauma.
iii. The death was unlawful.
iv. The accused, Peter Kababe Ndege, was positively linked to the offence through credible recognition evidence and a complete chain of circumstantial evidence.
v. Malice aforethought was established.
vi. The defence of insanity was not proved.
vii. No other defence was established.
viii. The prosecution proved its case beyond reasonable doubt.
H. VERDICT
65. In the result, I find that the prosecution has proved the charge of murder contrary to section 203 as read with section 204 of the Penal Code against the accused beyond reasonable doubt.
66. Accordingly, I find PETER KABABE NDEGE guilty of the offence of murder contrary to section 203 as read with section 204 of the Penal Code, and I convict him under section 322(2) of the Criminal Procedure Code.
T. A. ODERA
JUDGE
16.3.26
DATED, SIGNED AND DELIVERED VIRTUALLY VIA MICROSOFT TEAMS AT KISII THIS 16TH DAY OF MARCH 2026, IN THE PRESENCE OF :
Accused
Miss Oloo h/b for Miss Gogi for the Accused
Mr Koima for the Prosecution
Court Assistant: Kipchirchir
Mr Koima: We have no previous records.
Miss Oloo: Defence seeks time for the Probation Officer to file a pre-sentence report before mitigation.
Mr Koima: I was expecting Consolata Kerubo or any member of the deceased’s family. They are absent. I seek another date for the victim impact statement.
Order:
Mention on 13th May 2026 for victim impact statement and pre-sentence report.
T. A. ODERA
JUDGE
16.3.26
1. The accused person, Peter Kababe Ndege, was charged with the offence of murder contrary to section 203 as read with section 204 of the Penal Code.
2. The particulars of the charge were that on 28th December 2023 at Gotichaki Village, Getembe Sub-Location, Nyansore Location, Nyamarambe Division, in Gucha South Sub-County within Kisii County, he murdered Kennedy Oroo Makori alias Obote Kenyatta.
3. Upon arraignment on 19th January 2024, the accused was found unfit to plead on the basis of a psychiatric assessment dated 12th January 2024 from Nduru Sub-County Hospital. The court consequently directed that he be escorted to Kisii County Referral Hospital for treatment and psychiatric review. A subsequent report dated 22nd January 2024 indicated that he was fit to plead, whereupon plea was eventually taken.
4. The accused pleaded not guilty to the charge.
5. The prosecution called nine (9) witnesses, while the accused gave unsworn testimony in his defence and called no witness.
B. THE PROSECUTION CASE
7. PW1, Josephine Moraa, a 16-year-old daughter of PW2, testified that on 28th December 2023 at about 7.00 p.m., she was at home with her mother when she heard a quarrel on the road. She heard the name “Kebabe” being mentioned and screams from one “Oboti.” Upon being sent by her mother to check what was happening, she saw the accused standing near their gate holding a long knife. She later saw the deceased lying on the road with blood on his chest. She identified the accused in court and also identified the knife recovered as the one she had seen in his hand.
8. On cross-examination, PW1 admitted that she did not witness the actual stabbing. She, however, maintained that shortly after the screams, she saw the accused near the scene holding a knife in his right hand.
9. PW2, Hellen Moraa Mamboleo, the mother of PW1, testified that on the same evening she heard screams from the road. She rushed out and found the deceased lying on the road with a stab wound on the chest, while the accused was bending over him. According to her, the accused chased her away while hurling insults in Ekegusii. She fainted and was later taken to Nyamarambe Hospital. She stated that she had known the accused for about nine years and had no previous disagreement with him. She also observed that he appeared drunk on the material day.
10. On cross-examination, PW2 stated that although it was getting dark, visibility was still sufficient for her to recognize the accused. She confirmed that she did not witness the actual stabbing but found the accused immediately next to the deceased moments thereafter.
11. PW3, Consolata Kerubo, the widow of the deceased, testified that at about 7.00 p.m. she heard commotion and was informed by PW1 that the accused had stabbed her husband. She rushed to the scene and met the accused walking towards his home. She found her husband already dead with blood on his chest. She attended the post-mortem examination on 2nd January 2024, during which the doctor confirmed that death had been caused by a stab wound to the heart. She stated that the accused and the deceased had no known prior quarrel.
12. PW4, Wilson Omari Kebabe, the son of the accused, testified that on the same evening at around 7.30 p.m., he was informed that his father had stabbed “Obote.” He went to the scene and found the body of the deceased lying on the road. He was told that the accused had been subjected to mob justice and was injured. He found his father outside their home, injured, and upon police instructions, took him to hospital before presenting him to Nyamarambe Police Station, where he was arrested. He testified that both the deceased and the accused were known to consume alcohol, and that there had been no known dispute between them.
13. PW5, Justus Oranga Mauti, a nephew of the deceased, testified that at about 7.00 p.m. he heard screams and was informed that the accused had stabbed his uncle. He went to the scene and found the deceased lying on the road bleeding from the chest. The body was later moved to Tabaka Hospital Mortuary. He attended the post-mortem examination and confirmed the doctor’s finding that the cause of death was a stab wound to the heart.
14. PW6, Inspector Robai Masika, who testified on behalf of Chief Inspector Fredrick Sirengo, the Scene of Crime Officer, produced six photographs of the scene and the body of the deceased, together with a certificate of print. The photographs showed the deceased lying at the scene with visible injuries, including a stab wound and other marks on the body.
15. PW7, Dr. Naomi Ariaga, a pathologist at Kisii Teaching and Referral Hospital, performed the post-mortem on 2nd January 2024 at Tabaka Mission Hospital. She found a stab wound measuring 2 cm at the 3rd intercostal space, a tear in the 4th intercostal muscle, tear of the pericardium, haematoma in the pericardial cavity, and lacerations on both the right and left ventricles of the heart. She concluded that the cause of death was cardiac tamponade secondary to laceration of the heart due to sharp force trauma. She produced the post-mortem report in evidence. On cross-examination, she stated that the injuries on the elbows appeared to be defensive in nature.
16. PW8, Chief Brian Oteyo, the area chief, testified that at about 7.30 p.m. he received information from a clan elder and the assistant chief that the accused had stabbed the deceased to death. He went to the scene and found the deceased lying down with an unbuttoned shirt and a fresh stab wound on the chest. He reported the matter to Marani DCI. Police later came to the scene. He was informed that the accused had been subjected to mob justice and was lying injured outside his house. The accused was thereafter taken to hospital by police. He knew of no previous conflict between the deceased and the accused.
17. PW9, PC Anthony Kiragu, the investigating officer, testified that at about 8.00 p.m. he received information from the chief that a person had been stabbed to death at Gotichaki Village. He proceeded to the scene with his superiors and found the body of the deceased with a visible stab wound on the left side of the chest, abrasions on the knees, a cut wound on the left index finger, and bite marks on the left elbow and right forearm. He was informed that the accused had fled to a sorghum farm where members of the public traced him and assaulted him. The accused was taken to Nduru Level 4 Hospital for treatment and later detained at Nyamarambe Police Station.
18. PW9 further testified that on 29th December 2023, he revisited the scene and recovered a blood-stained knife with a black plastic handle a few metres from the accused’s hideout in the sorghum plantation. He attended the post-mortem examination on 2nd January 2024 and thereafter forwarded the file to the Office of the Director of Public Prosecutions, which directed that the accused be charged with murder.
19. In cross-examination, PW9 admitted that it was dark when they arrived at the scene. He also stated that the sorghum plantation appeared disturbed, suggesting that many people had been there, and conceded that he could not conclusively tell who had placed the knife where it was found. He further admitted that blood samples had been taken for DNA analysis but no report was produced. He confirmed that the accused had injuries on the scalp and legs consistent with mob justice.
C. THE DEFENCE CASE
20. In his unsworn defence, the accused denied the offence. He stated that on 28th December 2023 he had gone out to look for food for his children through casual labour. He returned home in the evening and was informed by his children that someone had been killed. He stated that the deceased lived in Nairobi and did business in Nyahururu, and that they had been on good terms. He denied meeting the deceased on the material day and stated that the following day he went to the police station where he was arrested.
21. The defence filed written submissions in which it questioned whether the prosecution had proved the charge beyond reasonable doubt and also raised the issue of insanity based on the psychiatric report dated 12th January 2024.
D. ISSUES FOR DETERMINATION
22. Having considered the evidence and the submissions on record, the issues arising for determination are:
a. Whether the fact and cause of death were proved;
b. Whether the death was caused by an unlawful act;
c. Whether the accused was the person who caused the death;
d. Whether malice aforethought was established;
e. Whether the defence of insanity or any other defence avails the accused;
f. Whether the prosecution proved its case beyond reasonable doubt.
E. LEGAL FRAMEWORK
23. Section 203 of the Penal Code provides:
“Any person who of malice aforethought causes the death of another person by an unlawful act or omission is guilty of murder.”
24. Section 206 of the Penal Code sets out circumstances in which malice aforethought may be deemed established, including intention to cause death or grievous harm, or knowledge that the act will probably cause death or grievous harm.
25. The burden of proof in criminal cases rests on the prosecution throughout. In Woolmington v DPP [1935] AC 462, it was stated that the duty of proving the prisoner’s guilt lies upon the prosecution. The same principle was reaffirmed in Pius Arap Maina v Republic [2013] eKLR, where the Court of Appeal held that any material gaps in the prosecution case must be resolved in favour of the accused.
26. For the offence of murder to be proved, the prosecution must establish:
i. the fact of death and the cause thereof;
ii. that the death was caused by an unlawful act or omission;
iii. that it was the accused who caused the death; and
iv. that the accused acted with malice aforethought.
F. ANALYSIS
(i) Whether the death of the deceased and the cause thereof were proved
27. The fact of death was proved beyond question. Several witnesses, including PW3, PW4, PW5, PW8 and PW9, saw the deceased’s body at the scene on the night of 28th December 2023.The medical evidence was tendered by PW7, Dr. Naomi Ariaga, whose post-mortem findings were clear and consistent. She found a penetrating stab wound to the chest which caused tears to the pericardium and both ventricles of the heart, resulting in cardiac tamponade secondary to sharp force trauma.The post-mortem report was produced without objection and corroborated the observations of the witnesses at the scene.I therefore find that the prosecution proved beyond reasonable doubt that Kennedy Oroo Makori alias Obote Kenyatta died on 28th December 2023, and that the cause of death was cardiac tamponade secondary to laceration of the heart due to sharp force trauma.
(ii) Whether the death was unlawful
28. A stab wound penetrating the chest and heart is plainly unlawful unless justified by law, for example in self-defence or other excusable circumstances. No such evidence was placed before the court.
29. The nature, location and severity of the injury point to a deliberate assault. I therefore find that the death of the deceased was caused by an unlawful act.
(iii) Whether the accused caused the death of the deceased
30. No witness saw the actual moment of stabbing. The prosecution case therefore rests on recognition evidence and circumstantial evidence.
31. The law on circumstantial evidence is settled. In Rex v Kipkering Arap Koske & Another [1949] 16 EACA 135, the Court held that the inculpatory facts must be incompatible with innocence and incapable of explanation upon any other reasonable hypothesis than that of guilt. In Simoni Musoke v R [1958] EA 715, and Abanga alias Onyango v Republic, Cr. App. No. 32 of 1990, the courts emphasized that the chain of circumstances must be complete and must unerringly point to the accused.
32. In the instant case, PW1 testified that after hearing commotion and screams, she saw the accused near the scene holding a long knife. She knew him well as a neighbour. PW2 testified that when she rushed to the scene moments later, she found the accused bending over the deceased, who had already been stabbed. PW3 met the accused leaving the scene and heading towards his home. All these were witnesses who knew the accused previously.
33. It is trite law that evidence of recognition is generally more reliable than identification of a stranger. In Abdalla Bin Wendo & Another v R [1953] 20 EACA 166, the Court observed that recognition may be more dependable where the witness is identifying someone known to him. In Wamunga v Republic [1989] KLR 424, the Court nonetheless cautioned that such evidence must still be tested carefully.
34. The defence challenged the reliability of recognition on the basis that the incident occurred at about 7.00 p.m. when darkness was setting in. I have considered that submission. The evidence of PW2, PW3 and PW8 was consistent that, although it was getting dark, it was not completely dark and one could still recognize a person at close range. The scene was only about five metres from PW2’s home. This was not identification of a stranger, but recognition of a neighbour known for years.
35. I am satisfied that the recognition evidence was reliable.
36. The prosecution case is further reinforced by a strong chain of circumstantial evidence, namely:
a. PW1 and PW2 heard a quarrel and screams immediately before the incident;
b. PW1 heard the name “Kebabe” being mentioned and saw the accused shortly thereafter holding a knife;
c. PW2 found the accused bending over the deceased immediately after the stabbing;
d. the accused chased PW2 away, thus exhibiting consciousness of wrongdoing;
e. PW3 met the accused leaving the scene;
f. the accused fled and hid in a sorghum plantation;
g. a blood-stained knife was later recovered a few metres from the accused’s hideout; and
h. there was no evidence of any other person being with the deceased at the material time.
37. In Republic v Ngugi s/o Kariuki [1952] 19 EACA 103, the Court held that unexplained flight may amount to evidence of consciousness of guilt. The accused’s conduct in fleeing the scene and hiding in the sorghum plantation is therefore a relevant circumstance.
38. The recovery of the blood-stained knife near the accused’s hideout is also significant. Although no DNA report was produced, the absence of scientific evidence is not necessarily fatal where there is otherwise cogent and credible evidence linking the accused to the offence.
39. I have also considered the defence argument that the knife was recovered the following day and that the plantation had been disturbed by many people. That is a factor warranting caution. However, when the recovery is considered together with the recognition evidence, the accused’s conduct at the scene, his immediate flight, and the absence of evidence implicating any other person, the totality of the evidence still forms a complete chain.
40. I am satisfied that the circumstantial evidence in this case is incompatible with the innocence of the accused and incapable of explanation upon any other reasonable hypothesis than his guilt.
41. I therefore find that the prosecution proved beyond reasonable doubt that it was the accused who caused the death of the deceased.
(iv) Whether malice aforethought was proved
42. Malice aforethought may be inferred from the nature of the weapon used, the part of the body targeted, the force applied, and the circumstances of the attack.
43. In this case, the weapon used was a knife, plainly a lethal weapon. The part of the body targeted was the chest, specifically the area of the heart, a most vulnerable and vital organ. The force used was sufficient to penetrate the chest wall, tear the pericardium, and lacerate both ventricles of the heart. Those injuries could only have been inflicted with considerable force.
44. The pathologist’s evidence that the deceased had defensive injuries on the elbows also suggests that the deceased attempted to ward off the attack.
45. In Republic v Tubere s/o Ochen [1945] 12 EACA 63, the Court held that malice aforethought may be inferred from the weapon used, the manner of its use, and the part of the body injured. The facts of this case fit squarely within that principle.
46. The accused’s conduct after the attack, namely chasing away PW2, fleeing the scene and hiding, also supports an inference that he knew the gravity of what he had done.
47. I therefore find that the prosecution proved malice aforethought beyond reasonable doubt.
(v) Whether the defence of insanity or any other defence avails the accused
48. The defence raised the issue of insanity on the strength of the psychiatric assessment dated 12th January 2024, which indicated that the accused had hallucinations, was unkempt, and was at that stage unfit to plead, with a diagnosis of drug-induced psychosis.
49. The applicable law is found in section 12 of the Penal Code, which provides that a person is not criminally responsible if, at the time of doing the act, he is through disease of the mind incapable of understanding what he is doing or of knowing that he ought not to do the act. R v M'Naghten [1843] 10 Cl & F 200, in which the House of Lords established the test for insanity, which has been adopted in Kenya. In that case it was held that ;
"To establish a defence on the ground of insanity, it must be clearly proved that, at the time of committing the act, the party accused was labouring under such a defect of reason, from disease of the mind, as not to know the nature and quality of the act he was doing, or if he did know it, that he did not know what he was doing was wrong."
50. The standard of proof of insanity is on a balance of probability as was held in the case Wakesho v Republic [2021] KECA 223 (KLR)
of to wit ‘’ Where, as here, it emerges from the evidence that the defence of insanity is in issue, (and the standard in that regard is on balance of probabilities) the prosecution is required to disprove it. (See Tadeo Oyee s/o Duru vs. R [1959] EA 407). We hold that the learned Judge ought to have made a special finding of guilty but insane.’’
51. Leonard Mwangemi Munyasia v Republic [2015] eKLR:it was held that ‘’is the duty oftrial courts, to inquire specifically into the question of insanity, not only in situations where such defence is raised but also where, as here, it becomes apparent to the court from the accused person’s history or antecedent that insanity may be an issue.’’
52. The critical inquiry is therefore the mental state of the accused at the time of the commission of the offence, not merely after arrest.
53. The psychiatric report relied on was prepared about two weeks after the incident. It addressed the accused’s state at the time of examination while in custody. A subsequent report dated 22nd January 2024 found him fit to plead.
54. There was no expert evidence demonstrating that at the time of the stabbing on 28th December 2023, the accused was labouring under such disease of the mind as to be incapable of understanding the nature of his act or of knowing that it was wrong. The4 report of 22.1.24 was not challenged
55. To the contrary, the accused’s conduct immediately after the incident points to awareness and comprehension of events. He quarrelled with the deceased, was seen at the scene with a knife, chased away PW2, fled from the scene, hid in a sorghum plantation, and was later able to give an account to PW4 and to present himself at the police station. Those actions are inconsistent with a mind incapable of appreciating the nature or wrongfulness of the act.
56. The evidence by PW2 and PW4 that the accused appeared drunk or that both men were known to drink does not, of itself, establish legal insanity. Nor was there evidence that intoxication was involuntary or that it rendered him legally insane within the meaning of the Penal Code.
57. I therefore find that the defence of insanity was not established.
58. As regards the accused’s unsworn denial, I have considered it fully. It amounts, however, to a bare denial which does not displace the strong recognition and circumstantial evidence adduced by the prosecution.
59. I therefore find that no defence was established.
(vi) Whether the prosecution proved its case beyond reasonable doubt
61. The standard of proof in criminal cases is proof beyond reasonable doubt. It does not mean proof beyond the shadow of a doubt, but such proof as leaves the court with no reasonable doubt as to guilt.
62. Upon a full review of the evidence, I am satisfied that the prosecution proved:
a. the death of the deceased and the cause thereof;
b. that the death was unlawful;
c. that it was the accused who inflicted the fatal injury;
d. that the accused acted with malice aforethought; and
e. that no lawful defence availed him.
63. The minor gaps pointed out by the defence, including the absence of DNA results and the fact that no one saw the actual stabbing, do not, in the circumstances of this case, create reasonable doubt. The prosecution evidence remained cogent, consistent and compelling.
G. CONCLUSION
64. Having carefully evaluated all the evidence on record, I make the following findings:
i. The death of Kennedy Oroo Makori alias Obote Kenyatta on 28th December 2023 was proved beyond reasonable doubt.
ii. The cause of death was cardiac tamponade secondary to laceration of the heart due to sharp force trauma.
iii. The death was unlawful.
iv. The accused, Peter Kababe Ndege, was positively linked to the offence through credible recognition evidence and a complete chain of circumstantial evidence.
v. Malice aforethought was established.
vi. The defence of insanity was not proved.
vii. No other defence was established.
viii. The prosecution proved its case beyond reasonable doubt.
H. VERDICT
65. In the result, I find that the prosecution has proved the charge of murder contrary to section 203 as read with section 204 of the Penal Code against the accused beyond reasonable doubt.
66. Accordingly, I find PETER KABABE NDEGE guilty of the offence of murder contrary to section 203 as read with section 204 of the Penal Code, and I convict him under section 322(2) of the Criminal Procedure Code.
T. A. ODERA
JUDGE
16.3.26
DATED, SIGNED AND DELIVERED VIRTUALLY VIA MICROSOFT TEAMS AT KISII THIS 16TH DAY OF MARCH 2026, IN THE PRESENCE OF :
Accused
Miss Oloo h/b for Miss Gogi for the Accused
Mr Koima for the Prosecution
Court Assistant: Kipchirchir
Mr Koima: We have no previous records.
Miss Oloo: Defence seeks time for the Probation Officer to file a pre-sentence report before mitigation.
Mr Koima: I was expecting Consolata Kerubo or any member of the deceased’s family. They are absent. I seek another date for the victim impact statement.
Order:
Mention on 13th May 2026 for victim impact statement and pre-sentence report.
T. A. ODERA
JUDGE
16.3.26