https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7379

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT THIKA** **CRIMINAL CASE NO. E011 OF 2024** **REPUBLIC………..…..………...………….....………..……PROSECUTION** **VERSUS** **GEORGE WAIREGI GACIKU………………..………………….ACCUSED** **JUDGMENT** 1. The accused person faces a charge of murder contrary to Section 203 as read with Section 204 of the Penal Code. The particulars of the charge are that on the 5th March 2024 at Kiriko Village, in Gatundu North Sub County, Kiambu County, he murdered John Kamau Wairegi. The accused pleaded not guilty to the charge. 2. The prosecution called eleven(11) witnesses in this case. Precisely, the evidence is that on 5th March 2024 at around 9.00 a.m., the accused went to his grandmother’s house where he found PW1 who is his auntie. The deceased, who was the uncle to the accused was also in the home compound where he has his own house. The accused and his uncle were not in good terms having quarreled some time back which led to the deceased banning the accused from visiting or staying with his grandmother in her home. Following the ban, the accused had moved to rent a room at the nearest trading centre, known as Kiriko where he was residing at the time of the incident. His occupation was casual work in the neighbouring farms which earned him a living. The key witnesses in this case are PW1 the auntie to the accused and her daughter PW2. PW1 and her daughter were resident at their mother and grandmother’s house respectively. On the material day, at around 9.00 a.m. the key witnesses testified that the accused came to his grandmother’s house and was immediately confronted by the deceased on why he was there despite the ban. PW1 said the deceased had his own house but he used to come often to his mother’s house where PW1 and PW2 stayed. 3. Following exchange of unpleasant words, the accused picked a panga from the house and cut the deceased on the head. The deceased fell down screaming for help but the accused continued to cut the deceased on the head as he lay helplessly on the ground outside the house. The accused continued to cut the deceased on several parts of the body including the neck, back and upper limbs. PW1 called for help and neighbours came to the scene after the incident. The accused ran towards a nearby road upon seeing neighbours approach the scene. From the evidence of the members of public, it was kind of confirmed that the deceased had passed on by the time they arrived at the scene. 4. PW5, the area Assistant Chief testified that he called the police on phone who came and attended to the scene. The body of the deceased was removed to the mortuary as the accused was arrested having returned to the scene a short while after leaving to go towards the road. 5. PW3 and PW4 came to the scene after the incident. PW3 said he was the village elder of Kiriko village. PW4 an uncle to the deceased said he did not witness the incident. He said he identified the body of the deceased at General Kago Mortuary, Thika for the doctor to conduct the postmortem. 6. PW7 was one of the officers from DCI Gatundu North office who went to the scene with PW6, a police officer from Kanjera police station and other officers. He testified that they found the deceased already dead upon arrival. Two pangas were recovered from the scene by her officers.PW7 was present during the processing of the scene together with scene of crime officers. She testified that she took the accused person to hospital for treatment for the injuries he had sustained at the scene. PW7 further testified that the post-mortem and mental assessment examinations were conducted and reports prepared. Some blood-stained clothes of the accused and deceased were taken to the Government Chemist for analysis and report was later to be produced in evidence. Samples of finger nails, hair and rib cartridge of the deceased were also taken for forensic analysis. PW7 being the investigating officer in this case coordinated her team made of DCI and police officers from Gatundu North Sub-County Police Division. 1. The exhibits including blood samples were sent to Government Chemist by PW7 the investigating officer. The analysis was conducted on the samples listed on the Exhibit Memo dated 20th March 2024 and produced in evidence by PW7. After conducting the analysis PW8 found that the blood on the clothes of the accused matched with the buccal swab of the accused person. The blood on the two pangas was found to match with the blood samples of the deceased. 2. Upon mental examination by Dr. Kendi dated 8th May 2024, the accused was found to be mentally sound and therefore fit to plead. Dr. Mathaiya produced the postmortem report dated 5th March 2025. He formed the opinion that the cause of death was the multiple injuries on the head and spine cause by a sharp object. 3. PW11 was the CCIO officer Murang’a who also visited the scene with DCI officers. He described the scene as he found it on the material day. He said there were some houses one of which was splashed with blood on the outer wall. He said that the deceased’s body had multiple cuts on the head, back and neck. He took twenty five (25) photographs which he produced in evidence. 4. The accused gave a sworn statement in evidence and told the court that he had differed with the deceased who was his uncle about eight (8) months before the incident. He said he had been banned by the deceased from going to his grandmother’s house. On the material day, he said that he went to the home and found his aunt PW1 there. His grandmother was working in her farm next to the home. He then met with the deceased within the compound and greeted him. His uncle was infuriated and demanded to know why the accused was at the home, having been banned from going there. The accused said that he was hit with a spade by the deceased whose handle got broken. He took part of the handle and also hit the deceased with it. The accused said that the deceased went to his house within the same compound and came with a panga. He aimed at cutting the accused on the head with the panga. The accused said he snatched the panga and used it to cut the deceased. 5. From the evidence of PW1 who was at the scene at the material time, it is confirmed that the accused and the deceased were not in good terms even before the incident. It is not in dispute that the accused had been banned from going to his grandmother’s home by the deceased the nearby Kiriko Centre, not far from the grandmother’s home. During cross-examination, PW1 said the accused used to come to the home to help gather fodder to feed his grandmother’s cows. It is also said that the accused related well with his grandmother and used to help her in some domestic chores. 6. PW1’s evidence was that she did not see the deceased hit the accused with a spade but she witnessed the exchange of harsh words between the two men before the accused went to his grandmother’s house to pick the panga that he used to kill the deceased. PW1 did not witness the alleged threats by deceased to kill the accused as was alleged in the defence. 7. The court found the evidence of PW1 credible. It is noted that she did not in any way incline towards favouring either the accused or the deceased in her evidence on how the quarrel started and later developed into a fatal attack whereas the accused attacked the deceased using the so called “big panga”. There is evidence that there was a second panga referred to as “the small panga”. The small panga was said to have been recovered by the police when they came to the scene but there was no clear evidence on whether it was used during the incident. 8. The accused claimed that he was attacked with a panga by the deceased after the deceased confronted him to explain why he had gone to the home of his grandmother after being banned from visiting her. 9. There is evidence that the deceased called the accused “an uncircumcised boy” and that the accused replied that he would prove to the deceased that he was circumcised. The issue that arises herein is whether the defence of provocation would stand in the circumstances. Under Section 208 of the Penal Code, provocation is defined in the following terms: - **“….The term “provocation” means and includes, except hereinafter stated, any wrongful act or insult of such nature as to be likely, when done to an ordinary person or in the presence of an ordinary person to another person who is under his immediate care, or to whom he stands in a conjugal, parental, filial or fraternal relation, or in the relation, or in the relation of master or servant, to deprive him of the power of self control and to induce him to commit an assault of the kind which the person charged committed upon the person by whom the act or insult is done or offered.”** 1. In regard to the verbal utterances, I am not convinced that the words uttered by the deceased amounted to ***“insult of such a nature as to be likely, when done to an ordinary person …. to deprive the accused of self-control and to induce him to commit an assault of the kind” t***he accused did to, the deceased. If the accused felt insulted by being referred as uncircumcised, the insult was such that a reasonable man would control himself and react in a way that would not bring the life of the deceased to an end. The said words were in my view, not sufficient to provoke the accused to an extent of killing the deceased. 2. The accused claims that he was provoked by the deceased to act in self defence and as such the act of killing the deceased could be held to be lawful. The accused said he used the spade used by the deceased to hit him. He further said that it was the deceased who later came with the panga from the house and aimed at cutting him on the head prompting him to snatch the panga and defend himself. This defence was not supported by the evidence of PW1 who was at the scene. DW1 the key witness said it was the accused who went for the panga from his grandmother’s house and used it to cut the deceased several times until he became helpless. PW1 tried to plead with the accused to stop the assault but he could not stop. The deceased died at the scene a few minutes after the assault which is evidence of the gravity of tye injuries. 3. The evidence of PW1 was credible and described the incident in very vivid details. For this reason, the defence of provocation cannot stand in that there is evidence that the accused who was the aggressor. He attacked the deceased with the panga continuously. The said panga was later recovered from the scene by police and identified by PW1 before the court. The Government Analyst report was that the big panga was blood stained with the blood of the deceased. This analysis corroborated the evidence of the prosecution. Consequently I find that the accused caused the unlawful act of killing the deceased. 4. The court has a duty of determining whether the prosecution have proved malice aforethought on part of the accused. Due to the facts of this case set out in this judgment, the court will begin with looking at the injuries inflicted on the deceased. The postmortem report shows the following injuries. 5. Multilateral head deep lacerations, as well as multiple skull fractures and evisceration of multilated brain. 6. Four multiple right postero-lateral gaping lank iliac and guffer gluteral region transverse and oblique gaping lacerations (15 x 3 cm) exposing the bone tissues and fat muscle. 7. Multilated scalp, intercranial and right postero-lateral limbo sacral and gluteral blood vessels. 8. Multilated head with complex communated skull fractures. 9. Multilated and eviscerated brain 10. Multiple limbo sacral and right iliac fractures 11. Multiple spinal cord transaction at the limbo sacral cord transaction at the lumbo-sacral region. 12. The cause of death was found to be multiple injuries consistent with homicide. It goes without saying that the injuries were extremely grave and multiple on the head, spine, lumbar sacral area which were inflicted continuously. The evidence of the manner and intensity as described by the witnesses and the doctor in the post mortem report could not have been motivated by any other intention other than that of bringing the life of the deceased to an end. In determining whether the accused had malice a forethought, the gravity of the injuries inflicted is key and must be considered in determining whether the accused had the intention to kill. 13. Section 205 of the Penal Code provides for what constitutes to malice aforethought as follows: - 14. Intention to cause death or to cause grievous harm; or 15. Knowledge that an act will likely cause death. 16. Malice aforethought is often established by evidence of the nature and type of the weapon, target area and the conduct of the person inflicting the injury. It was held in the case of **Republic Vs Lukalu KEHC 7489 KLR (2025)** that malice aforethought can be inferred from the use of a dangerous weapon aimed at vital parts the body of the deceased, demonstrating an intent to cause grievous harm. 17. In the above cited case, the injuries inflicted were multiple and grave whereas the weapon of a tool box was used which caused fatal injuries. The injuries were inflicted on vital parts of the body which are dependent on the life of a human being, that is, the head, the spine and muscle skeletal areas. The death of the deceased was instant in that he died in less than one hour before neighbours could organize to rush him to hospital. 18. With the foregoing description of the injuries inflicted on the deceased that led to instant death and relying on the case of **Republic Vs Lukalu case (supra)** this court proceeds to find that the prosecution have proved malice aforethought on part of the accused. 19. I find the accused guilty of the offence of Murder contrary to Section 203 as read with Section 204 of the Penal Code and convict him accordingly. 20. It is hereby so ordered. ***JUDGMENT DELIVERED VIRTULLY, DATED AND SIGNED AT THIKA THIS 21ST DAY OF MAY 2026.*** **F. MUCHEMI** **JUDGE**