Introduction
1. The accused RAMA MAPENZI faces a charge of murder contrary to Section 203 as read together with Section 204 of the Penal Code.
2. Particulars of the offence are that RAMA MAPENZI on the 14th day of April 2022 at Mudune Village in Samburu Sub-County within Kwale County murdered MATANO KENGA.
3. The prosecution called 7 witnesses to support its case that the Accused Person committed the offence herein and he was placed on his defence.
Prosecution Case
4. PW1, Zawadi Karisa Mwaro and PW2, Kenga Katana, were at a funeral in the neighbourhood on 14th April 2022 when they received a phone call from the neighbour’s wife informing them that their two children had been cut. They proceeded home and found that the children had been taken to Mariakani Hospital. At the hospital they found the children had been seriously injured on their heads and at 8.00 pm they were taken for a scan and due to the extent of the injuries they were referred to the Coast General Hospital for surgery. The deceased’s condition worsened and he was taken to the ICU but he succumbed to the injuries on 19th April 2022. PW1 and PW2 were informed that it is the Accused who committed the offence. PW2 said that the Accused was his younger brother’s son and that he was living with him and 2 of his siblings following their parent’s death. PW2 said he had not differed with the Accused Person.
5. PW3, Salim Kenga, narrated in his unsworn testimony that he was at home together with the deceased and Furaha, PW4, and the Accused person was in the kitchen. He said that suddenly the Accused person cut him with an axe on the head and also cut the deceased and ran away. That when he tried to run away, the Accused pursued him and cut him again on the left side of the head. That he lost consciousness and came to when he was in the hospital.
6. PW4, Furaha Mapenzi, the sister to the Accused Person, testified that on 14th April 2022 at 2.00 pm, she was at home with Sofia, Salim, Matano, and Rama. That she was sleeping on a mat with Sofia under a tree when she was woken up when she heard Salim crying. She said that Rama, the Accused Person, had cut Salim at the back of the head. She also saw Matano lying on the ground having been cut with an axe on the head. That she found the Accused was armed with an and he cut Salim the second time before starting to pursue them. That they ran away and called neighbours who took the two injured boys to the hospital.
7. PW5, Sofia Chaka, aged 11 years in her unsworn statement testified that she had visited Furaha, PW4, and they were sleeping on a mat under a tree while Salim, PW3, was playing behind the house and the deceased was seated on a tyre. She said that the Accused Person was standing at the door of the kitchen. She said that they were woken up by noise made by Salim and found Matano had been cut and was bleeding from the head and Salim was also bleeding from the head. That they ran to the neighbor who went for motorbikes which were used to take Salim and Matano to hospital.
8. PW6, Sgt. Churchill Owili investigated the murder and preferred charges against the Accused Person. He said that the Accused Person surrendered himself at Mariakani Police Station claiming he had killed 2 younger brothers. PW6 visited the victim at Mariakani Hospital and saw that they had serious injuries on the head. The two victims were later transferred to Coast General Hospital were the deceased was in a coma in the ICU until he succumbed to the injuries on 19th April 2022. PW6 arranged for postmortem on 22nd April 2022 and the same was dome by Dr. Maneno as per ExP1 which was produced by Dr. Mngola, PW7. The postmortem examination established that death was caused by cardio-respiratory arrest secondary to severe head injuries.
Defence Case
9. The Accused in his defence admitted that he inflicted injuries on the deceased because the deceased made comments that annoyed him to the effect that there are people who will be poor and will not get education. He said that this affected him directly because his father died and left two parcels of land one of which was acquired by SGR and it is the deceased’s father who received the compensation. That when he was due to join Form 1 in July 2021, PW2 did not pay for his school fees and therefore he started working in the quarry to earn a living. He said that his younger brother was not taken to school and it is only his sister who was in school and PW2 is paying her fees. He said the deceased person’s father took everything that belonged to his parents and as an orphan he faced many challenges.
10. The Accused Person’s advocated filed submissions dated 23rd May 2024 in which it was argued that the prosecution had not discharged its burden beyond reasonable doubt against the Accused and most specifically that the Accused caused the death of the deceased with malice aforethought. It is submitted that the evidence by the Accused Person had not been controverted and that the Accused had not planned to commit the murder but was pushed to do it after the deceased started bragging and talked about things that touched on his life. It was submitted that the preferential treatment by the deceased’s father to his children at the expense of the Accused Person and his siblings greatly contributed to the Accused committing the offence. This court is urged to acquit the Accused Person.
Analysis and Determination
11. In consideration of the evidence of 7 prosecution witnesses and in consideration of the sworn testimony of the Accused, this court is to determine whether the ingredients of the offence of murder as provided for under Section 203 of the Penal Code Chapter 63 of the Laws of Kenya have been proved beyond reasonable doubt by the prosecution.
12. Section 203 of the Penal Code Chapter 63 of the Laws of Kenya under which the Accused Person was charged provides as follows: -
‘Any person who of malice aforethought causes death of another person by an unlawful act or omission is guilty of murder.’
13. The said provision creates elements of the offence of murder that must be proved by the prosecution beyond reasonable doubt as held in the case of Anthony Ndegwa Ngari v Republic [2014] eKLR to include: -
i. That the deceased died;
ii. That the death was caused by an unlawful act or omission;
iii. That the accused person directly or indirectly participated in the commission of the alleged offence; and
iv. That there was malice aforethought.
Death of the deceased
14. There is no dispute as to the death of the deceased Matano Kenga.
Whether death was caused by an unlawful act or omission and whether the Accused Person participated
15. It is not in dispute that the deceased died as a result of the unlawful act committed by the Accused Person. The Accused Person was seen was seen by PW3, PW4, and PW5 committing the offence. When the Accused went to Mariakani Police Station, PW6 said that he reported that he had killed his 2 younger brothers. In his testimony in court in his defence, the Accused admitted that he inflicted the injuries that led to the death of the deceased but he claimed that he was annoyed by comments that were allegedly made by the deceased. The fact that the deceased died as a result of an unlawful act on the part of the Accused Person is also not disputed.
Malice aforethought
16. Section 206 of the Penal Code defines malice aforethought as follows: -
“Malice aforethought shall be deemed to be established by evidence proving anyone or more of the following circumstances: -
(a) an intention to cause the death of or to do grievous harm to any person, whether that person is the person actually killed or not;
(b) knowledge that the act or omission causing death will probably cause the death 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 act or omission to facilitate the flight or escape from custody of any person who has committed or attempted to commit a felony”.
17. On the element of malice aforethought in respect to Section 206 of the Penal Code, the court held as follows in the case of Isaac Kimathi Kanuachobi -vs- R (2013) eKLR: -
“There is express, implied and constructive malice. Express malice is proved when it is shown that an accused person intended to kill while implied malice is established when it is shown that he intended to cause grievous bodily harm. When it is proved that an accused killed in further course of a felony (for example rape, a robbery or when resisting or preventing lawful arrest) even though there was no intention to kill or cause grievous bodily harm, he is said to have had constructive malice aforethought.”
18. The elements to prove malice aforethought were settled in the case of Ernest Asami Bwire Abanga alias Onyango v R (CACRA No. 32 of 1990) where the Court held:
“the question of intention can be inferred from the true consequences of the unlawful acts or omission of the brutal killing, which was well planned and calculated to kill or to do grievous harm upon the deceased.”
19. PW3 testified that the Accused suddenly picked an axe and cut the deceased on the head and also cut him twice on the head. PW3 did not say that he heard the Accused and the deceased argue over anything. He did not say if he heard the deceased bragging or say anything annoying to the Accused Person and PW3 was not cross examined as to the reason why the Accused Person hit the deceased on the head with an axe.
20. PW4 and PW5 were also at the scene and did not say whether they heard the Accused and the deceased argue or even quarrel over any issue that could have annoyed the Accused Person to the extent of picking an axe and cutting his cousin brother on the head.
21. If it is indeed true that the deceased had made comments that annoyed the Accused, then it is not explained why the Accused Person cut PW3 on the head twice and why he was pursuing PW4 and PW5 with the aim of cutting them with the same axe. The fact that the Accused Person used an axe and aimed it on the vital parts of the bodies of the deceased and PW2 and the fact that he not only inflicted fatal injuries on the bodies of the deceased but also PW2 and the fact that he also wanted to cut PW4 and PW5 makes this court conclude that he was actuated with malice aforethought in committing the murder.
22. This court therefore finds that the prosecution has proved its case beyond reasonable doubt. The accused person is found guilty of the offence of murder and is convicted accordingly.
Dated, signed and delivered in Open Court/online through MS TEAMS this 21st day of June 2024
In the presence of: -
Etropia- Court Assistant
Ms. Maina for the State
Mr. Mwawasi Advocate for the Accused
Accused person present in person
Ms. Maina: The Accused Person is serving a 7 years sentence for the offence of causing grievous harm. He was charged in Mariakani Chief Magistrate’s Court for inflicting injuries on PW3.
Mr. Mwawasi Advocate: We pray for a date for mitigation. We also pray that a Victim Impact Statement and Pre-Sentence Report be availed.
Order: Mention on 11th July 2024 for Pre-Sentence Report, Victim Impact Statement, Mitigation and Sentence.
1. The accused RAMA MAPENZI faces a charge of murder contrary to Section 203 as read together with Section 204 of the Penal Code.
2. Particulars of the offence are that RAMA MAPENZI on the 14th day of April 2022 at Mudune Village in Samburu Sub-County within Kwale County murdered MATANO KENGA.
3. The prosecution called 7 witnesses to support its case that the Accused Person committed the offence herein and he was placed on his defence.
Prosecution Case
4. PW1, Zawadi Karisa Mwaro and PW2, Kenga Katana, were at a funeral in the neighbourhood on 14th April 2022 when they received a phone call from the neighbour’s wife informing them that their two children had been cut. They proceeded home and found that the children had been taken to Mariakani Hospital. At the hospital they found the children had been seriously injured on their heads and at 8.00 pm they were taken for a scan and due to the extent of the injuries they were referred to the Coast General Hospital for surgery. The deceased’s condition worsened and he was taken to the ICU but he succumbed to the injuries on 19th April 2022. PW1 and PW2 were informed that it is the Accused who committed the offence. PW2 said that the Accused was his younger brother’s son and that he was living with him and 2 of his siblings following their parent’s death. PW2 said he had not differed with the Accused Person.
5. PW3, Salim Kenga, narrated in his unsworn testimony that he was at home together with the deceased and Furaha, PW4, and the Accused person was in the kitchen. He said that suddenly the Accused person cut him with an axe on the head and also cut the deceased and ran away. That when he tried to run away, the Accused pursued him and cut him again on the left side of the head. That he lost consciousness and came to when he was in the hospital.
6. PW4, Furaha Mapenzi, the sister to the Accused Person, testified that on 14th April 2022 at 2.00 pm, she was at home with Sofia, Salim, Matano, and Rama. That she was sleeping on a mat with Sofia under a tree when she was woken up when she heard Salim crying. She said that Rama, the Accused Person, had cut Salim at the back of the head. She also saw Matano lying on the ground having been cut with an axe on the head. That she found the Accused was armed with an and he cut Salim the second time before starting to pursue them. That they ran away and called neighbours who took the two injured boys to the hospital.
7. PW5, Sofia Chaka, aged 11 years in her unsworn statement testified that she had visited Furaha, PW4, and they were sleeping on a mat under a tree while Salim, PW3, was playing behind the house and the deceased was seated on a tyre. She said that the Accused Person was standing at the door of the kitchen. She said that they were woken up by noise made by Salim and found Matano had been cut and was bleeding from the head and Salim was also bleeding from the head. That they ran to the neighbor who went for motorbikes which were used to take Salim and Matano to hospital.
8. PW6, Sgt. Churchill Owili investigated the murder and preferred charges against the Accused Person. He said that the Accused Person surrendered himself at Mariakani Police Station claiming he had killed 2 younger brothers. PW6 visited the victim at Mariakani Hospital and saw that they had serious injuries on the head. The two victims were later transferred to Coast General Hospital were the deceased was in a coma in the ICU until he succumbed to the injuries on 19th April 2022. PW6 arranged for postmortem on 22nd April 2022 and the same was dome by Dr. Maneno as per ExP1 which was produced by Dr. Mngola, PW7. The postmortem examination established that death was caused by cardio-respiratory arrest secondary to severe head injuries.
Defence Case
9. The Accused in his defence admitted that he inflicted injuries on the deceased because the deceased made comments that annoyed him to the effect that there are people who will be poor and will not get education. He said that this affected him directly because his father died and left two parcels of land one of which was acquired by SGR and it is the deceased’s father who received the compensation. That when he was due to join Form 1 in July 2021, PW2 did not pay for his school fees and therefore he started working in the quarry to earn a living. He said that his younger brother was not taken to school and it is only his sister who was in school and PW2 is paying her fees. He said the deceased person’s father took everything that belonged to his parents and as an orphan he faced many challenges.
10. The Accused Person’s advocated filed submissions dated 23rd May 2024 in which it was argued that the prosecution had not discharged its burden beyond reasonable doubt against the Accused and most specifically that the Accused caused the death of the deceased with malice aforethought. It is submitted that the evidence by the Accused Person had not been controverted and that the Accused had not planned to commit the murder but was pushed to do it after the deceased started bragging and talked about things that touched on his life. It was submitted that the preferential treatment by the deceased’s father to his children at the expense of the Accused Person and his siblings greatly contributed to the Accused committing the offence. This court is urged to acquit the Accused Person.
Analysis and Determination
11. In consideration of the evidence of 7 prosecution witnesses and in consideration of the sworn testimony of the Accused, this court is to determine whether the ingredients of the offence of murder as provided for under Section 203 of the Penal Code Chapter 63 of the Laws of Kenya have been proved beyond reasonable doubt by the prosecution.
12. Section 203 of the Penal Code Chapter 63 of the Laws of Kenya under which the Accused Person was charged provides as follows: -
‘Any person who of malice aforethought causes death of another person by an unlawful act or omission is guilty of murder.’
13. The said provision creates elements of the offence of murder that must be proved by the prosecution beyond reasonable doubt as held in the case of Anthony Ndegwa Ngari v Republic [2014] eKLR to include: -
i. That the deceased died;
ii. That the death was caused by an unlawful act or omission;
iii. That the accused person directly or indirectly participated in the commission of the alleged offence; and
iv. That there was malice aforethought.
Death of the deceased
14. There is no dispute as to the death of the deceased Matano Kenga.
Whether death was caused by an unlawful act or omission and whether the Accused Person participated
15. It is not in dispute that the deceased died as a result of the unlawful act committed by the Accused Person. The Accused Person was seen was seen by PW3, PW4, and PW5 committing the offence. When the Accused went to Mariakani Police Station, PW6 said that he reported that he had killed his 2 younger brothers. In his testimony in court in his defence, the Accused admitted that he inflicted the injuries that led to the death of the deceased but he claimed that he was annoyed by comments that were allegedly made by the deceased. The fact that the deceased died as a result of an unlawful act on the part of the Accused Person is also not disputed.
Malice aforethought
16. Section 206 of the Penal Code defines malice aforethought as follows: -
“Malice aforethought shall be deemed to be established by evidence proving anyone or more of the following circumstances: -
(a) an intention to cause the death of or to do grievous harm to any person, whether that person is the person actually killed or not;
(b) knowledge that the act or omission causing death will probably cause the death 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 act or omission to facilitate the flight or escape from custody of any person who has committed or attempted to commit a felony”.
17. On the element of malice aforethought in respect to Section 206 of the Penal Code, the court held as follows in the case of Isaac Kimathi Kanuachobi -vs- R (2013) eKLR: -
“There is express, implied and constructive malice. Express malice is proved when it is shown that an accused person intended to kill while implied malice is established when it is shown that he intended to cause grievous bodily harm. When it is proved that an accused killed in further course of a felony (for example rape, a robbery or when resisting or preventing lawful arrest) even though there was no intention to kill or cause grievous bodily harm, he is said to have had constructive malice aforethought.”
18. The elements to prove malice aforethought were settled in the case of Ernest Asami Bwire Abanga alias Onyango v R (CACRA No. 32 of 1990) where the Court held:
“the question of intention can be inferred from the true consequences of the unlawful acts or omission of the brutal killing, which was well planned and calculated to kill or to do grievous harm upon the deceased.”
19. PW3 testified that the Accused suddenly picked an axe and cut the deceased on the head and also cut him twice on the head. PW3 did not say that he heard the Accused and the deceased argue over anything. He did not say if he heard the deceased bragging or say anything annoying to the Accused Person and PW3 was not cross examined as to the reason why the Accused Person hit the deceased on the head with an axe.
20. PW4 and PW5 were also at the scene and did not say whether they heard the Accused and the deceased argue or even quarrel over any issue that could have annoyed the Accused Person to the extent of picking an axe and cutting his cousin brother on the head.
21. If it is indeed true that the deceased had made comments that annoyed the Accused, then it is not explained why the Accused Person cut PW3 on the head twice and why he was pursuing PW4 and PW5 with the aim of cutting them with the same axe. The fact that the Accused Person used an axe and aimed it on the vital parts of the bodies of the deceased and PW2 and the fact that he not only inflicted fatal injuries on the bodies of the deceased but also PW2 and the fact that he also wanted to cut PW4 and PW5 makes this court conclude that he was actuated with malice aforethought in committing the murder.
22. This court therefore finds that the prosecution has proved its case beyond reasonable doubt. The accused person is found guilty of the offence of murder and is convicted accordingly.
Dated, signed and delivered in Open Court/online through MS TEAMS this 21st day of June 2024
In the presence of: -
Etropia- Court Assistant
Ms. Maina for the State
Mr. Mwawasi Advocate for the Accused
Accused person present in person
Ms. Maina: The Accused Person is serving a 7 years sentence for the offence of causing grievous harm. He was charged in Mariakani Chief Magistrate’s Court for inflicting injuries on PW3.
Mr. Mwawasi Advocate: We pray for a date for mitigation. We also pray that a Victim Impact Statement and Pre-Sentence Report be availed.
Order: Mention on 11th July 2024 for Pre-Sentence Report, Victim Impact Statement, Mitigation and Sentence.