https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/13062

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT NAIROBI** **CRIMINAL CASE NO. E082 OF 2022** **REPUBLIC--------------------------------------------------------- PROSECUTION** **VERSUS** **STEPHEN MACHARIA GATHUGU alias MACHA-----------ACCUSED** **JUDGMENT** 1. The accused person was charged with the offence of Murder contrary to Section 203 as read with Section 204 of the Penal Code Cap 63 Laws of Kenya. 2. The particulars of the offence are that on 31st October 2022 at around 2200 hours at City Carton Slums in Buruburu within Nairobi County murdered EVANSON MWANGI IRUNGU alias MWAS. **PROSECUTION’S CASE** 1. The prosecution called a total of 7 witnesses in support of their case. 2. According PW1, **Mary Wanjiru Mwangi**, a 50-year-old resident of Githurai in Nairobi County and a second-hand clothes trader operating in Narok, testified that the deceased, **Elizapher Mwangi Irungu,** was her son. 3. On 31 August 2022 she received a call from the deceased's father informing her that Mwangi had been assaulted during the night. 4. She contacted the deceased's friend, **Zacharia,** and proceeded to **City Carton near Buruburu** where the deceased resided and was told that the deceased had been taken to hospital. 5. She testified that she found him at **Silent Hill Dispensary** receiving treatment. 6. Although the deceased had sustained facial injuries which required stitching, he was conscious and able to speak. The deceased informed her that he had been assaulted by **Macharia.** 7. After treatment she escorted him from the facility and later returned to Githurai. Before leaving the deceased’s place, she gave Zacharia Kshs 400 to buy food for the deceased. 8. On 2nd September 2022, while preparing to visit her son, she received a call from Zacharia informing her that his condition had deteriorated. Upon arriving near his residence, she observed an ambulance leaving and was informed that her son had died at Silent Hill Dispensary. 9. She proceeded there and saw the body and accompanied the body to **Buruburu Police Station** and later to **Kenyatta University Mortuary.** 10. She stated that she did not witness the assault or the postmortem examination. 11. She further testified that she was informed that the accused was drunk when she saw him after the incident and urged the court to forgive him because imprisonment would not bring her son back. 12. PW2, **Martin Wandugi Kariuki,** a driver who was residing in Huruma at the time of the incident and later moved to Eldoret, testified that on 5th September 2022 he attended the postmortem examination of his nephew, **Mwangi Irungu,** at **Kenyatta University Mortuary.** 13. He identified the body to the pathologist and observed an injury on the deceased's head. He confirmed that the doctor conducted the examination and signed the postmortem report in the presence of other relatives including **John Kemau Mwangi**. He stated that he did not know who assaulted the deceased. 14. PW3 was **Onesmus Kariuki,** a Clinical Officer Specialist in Oncology and the officer in charge of **Silent Hill Hospital,** testified that on 2nd September 2022 the facility received **Evanson Mwangi,** a 36-year-old male, who had been brought in by good Samaritans in critical condition. Upon examination the patient was unconscious. 15. The history provided indicated that the unconsciousness resulted from injuries sustained during an assault. Emergency treatment was administered and arrangements were made to transfer him to **Mama Lucy Hospital.** Before the transfer could be completed the patient died at the facility at approximately 8.50 a.m. 16. The witness personally confirmed the death and informed the police. He produced a letter dated 2nd September 2022 from Silent Hill Hospital which was admitted into evidence as **Prosecution Exhibit 1 (PExh 1)**. 17. The witness stated that the hospital had received the deceased at about 8.20 a.m. on the same day and that no detailed history regarding the assault had been provided. 18. PW4 was **Zachariah Mwangi Wangui**, a boda boda operator and resident of **Buruburu City Carton** in 2022 who testified that on the night of 31st August 2022 he was informed by **Jane** that his friend **Evanson Mwangi** had been injured. 19. He visited the deceased and found him lying on a bed covered with a bedsheet. When he inquired about the incident, the deceased informed him that he had quarreled with a person known as **Kamnyo**. 20. Although Zachariah attempted to take the deceased to hospital, the deceased initially refused thereby delaying in receiving treatment. 21. The following morning, he contacted the deceased's mother and together with another friend known as **Simo** they took the deceased to **Silent Clinic** where he received treatment. 22. Later that day the deceased appeared to be recovering and informed him that he was feeling better. On the evening of the following day Zachariah took him food and cigarettes. 23. The deceased disclosed that due to pain he had consumed all the medication that had been prescribed to him at once. 24. On 2nd September 2022 Zachariah was informed by a friend named **Gachagua,** that the deceased was groaning in his house. He proceeded there to see him and upon arrival, he found the deceased lying on the floor and foaming at the mouth. 25. Together with other friends he rushed him back to Silent Clinic where medical staff attempted to place him on oxygen. The deceased died while receiving treatment. 26. Zachariah then accompanied the body to **Buruburu Police Station** where the matter was reported. He stated that the deceased had only mentioned quarrelling with Kamnyo and had not named the accused as his assailant. 27. He further confirmed that the accused, **Macharia Stephen**, was his neighbour and that he had known him for approximately three years. Upon cross-examination the witness reiterated that the deceased had not mentioned the accused's name and admitted that he had not formally recorded a statement with the police. 28. He nevertheless maintained that the deceased had sustained a head injury. 29. PW5 was **Jane Njambi Muthoni**, who was in custody at **Lang'ata Women's Prison** on a separate robbery with violence case at the time she was called to testify. She testified that before her arrest she resided at **Buruburu City Carton** and knew both the deceased and the accused as neighbors. 30. She testified thaton 31st August 2022 at about 2.00 p.m. she observed the deceased, **Macharia** and **Kamnyo** arguing within the plot. 31. According to her, the deceased accused Macharia of insulting him and the three men left together while continuing their verbal confrontation. 32. At approximately 8.00 p.m. the deceased returned to the plot and shortly thereafter went outside the gate. Jane then heard sounds resembling blows being struck. 33. She went out to establish what was happening and found the deceased lying on the ground. At the scene were **Kamnyo** and the accused. 34. She observed blood on the ground and saw that the deceased was bleeding from the face near the eye. Kamnyo was holding a large beer bottle while the accused stood beside him. When she asked what had happened none of them responded and they walked away. 35. Jane immediately searched for Zachariah and informed him that the deceased had been injured after a confrontation involving Kamnyo and Macharia. The deceased was later taken to hospital. She subsequently saw him with bandages on his eye and head. 36. On 2nd September 2022 Pw5 participated in efforts to take the deceased back to Silent Hospital after his condition worsened. Although plans were made to transfer him to **Mama Lucy Hospital,** he died before the transfer could occur. 37. During cross-examination Pw5 stated that all three men appeared to have been drinking on the day of the incident. She testified that she witnessed the fight and specifically saw **Kamnyo strike the deceased on the head with a bottle**, which she described as the weapon used in the assault. 38. She confirmed that the bottle was never recovered and was not produced before the court as an exhibit. She further confirmed that **Macharia**, the accused before the court, was present at the scene and known to her as a neighbour who worked in garbage collection together with Kamnyo. 39. PW6, **No. 241330 IP Joyce Tunge**, who was attached to **Buruburu Police Station** as an investigator at the time of the incident and was later transferred to **DCIO Ainabkoi, Uasin Gishu County** testified that on 2nd September 2022 an ambulance arrived at Buruburu Police Station carrying the body of **Evanson Mwangi.** 40. The police were informed that the deceased had been assaulted by persons known to him and had died while receiving treatment at **Silent Hill Hospital.** After the report was made, the family was permitted to transfer the body to **Kenyatta University Funeral Home.** 41. Together with witnesses, the investigating team visited the scene at **City Carton Slums in Buruburu**. During investigations, statements were recorded from **Jane Njambi Muthoni, Kelvin Michuki, Mary Wanjiru Mwangi,** and **Zacharia Mwangi Wangui**. 42. The officer established that the deceased, the accused **Stephen Macharia,** and Jane Njambi were residents of the same plot. At the scene the witness observed blood stains outside the accused’s house which was locked at the time. 43. Investigations revealed that on 31st August 2022 at about noon the deceased confronted the accused over alleged insults and slapped him, leading to a fight which was broken up by neighbours including Jane Njambi. 44. According to information gathered from witnesses, the accused later returned at about 10.00 p.m. in the company of a friend identified as **Kamnyo (also referred to as Kamunyu).** 45. The officer stated that when the deceased later arrived, Kamuyo attacked him by punching him on the head and while the struggle continued the accused allegedly emerged from his house carrying a bottle which was used to hit the deceased on the head. Jane Njambi intervened and the fight stopped, after which the deceased returned to his house. 46. Jane subsequently contacted **Zacharia Mwangi**, who came to assist the deceased. The deceased reportedly informed Zacharia that he had been assaulted by both the accused and Kamuyo. 47. According to the officer, although efforts were made to take the deceased to hospital that night, he refused because he was intoxicated. The following day his mother**, Mary Wanjiru,** was called and the deceased was taken to **Silent Hill Hospital** where he received treatment before returning home. 48. The officer further testified that on 1 September 2022 **Kelvin Michuki** visited the deceased, who again stated that he had been assaulted by the accused and Kamunyo. 49. On 2 September 2022 the deceased's condition worsened and he was rushed back to hospital where he was placed on oxygen and referred for further treatment. However, he died before the transfer could be completed. The nurses advised those accompanying him to report the matter to the police. 50. Investigations commenced following the incident but the accused disappeared and could not be traced for some time. 51. On 9th November 2022 he resurfaced and was apprehended by members of the public before being handed over to the police. He was subsequently presented before the **Makadara Law Courts** on 10 November 2022 where police obtained custodial orders to facilitate further investigations. 52. The accused later underwent a mental assessment on 29 November 2022 and the resulting report confirmed that he was fit to plead. The mental assessment report dated 29 November 2022 was produced as an exhibit before the court. 53. During cross-examination, the witness conceded that she did not witness the assault personally, did not recover the alleged bottle used in the attack, did not collect samples of the blood stains observed outside the accused’s house, and did not search the accused’s residence because it was locked. 54. She acknowledged that much of her evidence regarding the assault was based on information supplied by witnesses, particularly **Jane Njambi Muthoni**, whose statement indicated that the deceased had confronted and slapped the accused earlier that day and that later, after hearing a commotion, she witnessed the accused and Kamunyu retaliate against the deceased. 55. Further, the officer reiterated that Jane Njambi had informed investigators that she overheard the accused and Kamuyo discussing revenge and later witnessed the accused strike the deceased on the head, causing him to bleed. 56. PW7 was **Dr. Johansen Oduor**, the Chief Government pathologist who testified that he holds a Bachelor of Medicine and Bachelor of Surgery (MBChB) degree obtained from the **University of Nairobi** in 2000 and a Master of Medicine in Pathology obtained from the same institution in 2007. He stated that he has practiced as a pathologist since completing his specialist training. 57. The witness conducted a postmortem examination on the body of **Mwangi Irungu** at **Kenyatta University Hospital** on 5 September 2022 and prepared and signed the postmortem report on the same date. 58. In the course of the examination, he observed that the deceased was of good nutritional status and had a bandaged head. Externally, he noted the presence of a haematoma on the left eye and another on the midline of the forehead. Internally, he found a depressed skull fracture on the left side of the head accompanied by bleeding and damage to the brain tissue on the same side. The remaining organs were found to be normal. 59. On the basis of his findings, Dr. Oduor formed the opinion that the cause of death was a severe head injury resulting from **blunt force trauma**. He produced the postmortem report as **Prosecution Exhibit 1 (PExh 1).** 60. During cross-examination, he clarified that his conclusions were based solely on the observations made during the postmortem examination. 61. He confirmed that he had not visited the scene of the incident and had not examined any weapon. He therefore could only conclude that the fatal injuries were caused by blunt force trauma and could not identify the specific object used to inflict them. 62. The prosecution closed its case with the evidence of Pw7 and this court upon review of the evidence determined that the accused person had a case to answer. The accused was accordingly placed on his defence and his rights in defense were explained in line with Section 306(2) of the Criminal Procedure Code. 63. The accused elected to give an unsworn defense and did not have any witnesses to call. **DEFENCE CASE** 1. In his defense**, the accused** testified that he was 44 years old and worked as a garbage collector during the period he resided at **City Carton near Buruburu**. He stated that on 31st August 2022 he left home at about 5.30 a.m. for work and returned at approximately 12.30 p.m. 2. Upon arrival he found **Jane Njambi Muthoni (PW5)** washing clothes outside and **Zacharia Mwangi (PW4)** seated nearby. He also found the deceased, **Evanson Mwangi,** whom he described as having been drunk and was smoking bhang. 3. According to the accused, the deceased requested him to take scrap metal for weighing. Upon examining the items, he noticed that some of the scrap consisted of **Kenya Power (KPLC)** metal parts and declined the request for fear of being arrested. 4. The accused testified that the deceased became angry, slapped him and struck him on the head with a metal bar fitted with screws, causing him to bleed. He stated that Jane Njambi and another woman intervened and separated them. 5. He stated that he did not retaliate and he instead went into his house, cleaned himself, changed clothes and later left the area. He returned at about 7.00 p.m. while intoxicated and retired to his house. 6. The accused further testified that later that evening his neighbour, **Ismail Kamunyo,** returned to his adjacent house and asked about the earlier assault. He informed Kamunyo that the deceased had attacked him but that Jane had resolved the matter. Kamunyo allegedly stated that he too had previously been assaulted by the deceased during the same week. 7. The accused stated that he later went to sleep and at approximately 11.00 p.m. he was awakened by noises at the gate and his door being struck. When he opened the door, he found the deceased outside armed with the same metal bar he had used on him earlier in the day and was shouting that he was not yet finished with him. 8. The accused stated that the deceased attempted to attack him again, prompting him to scream for help. Kamunyo emerged from his house carrying a wooden stick used as a door crossbar and struck the deceased on the head. 9. The accused denied assaulting the deceased and closed his defense. 10. Following the closure of the defense case the prosecution and the defense agreed to file written submissions which they did. The court has fully considered the same. **PROSECUTION'S SUBMISSION** 1. The prosecution submitted that having had established a prima facie case, the question for determination was whether the evidence adduced, considered together with the defence, proved the charge beyond reasonable doubt. 2. The prosecution contended that the defence advanced by the accused neither displaced nor weakened the prosecution case. 3. Addressing the defence of alibi, the prosecution submitted that the accused raised the defence for the first time during the defence hearing and failed to call any witness to support it, despite indicating that he intended to call one Ismael Kamunyo as a witness. 4. The prosecution argued that the defence was effectively displaced by the testimony of PW5, who placed the accused at the scene of the incident at the material time. 5. According to the prosecution, PW5 testified that on 31st August 2022 she was washing clothes outside her house when the deceased and the accused, both her neighbours, became involved in an altercation during which the deceased slapped the accused. PW5 allegedly intervened and separated them. 6. It was further submitted that later that evening Pw5 overheard the accused speaking with Kamunyo and expressing a desire for revenge because he had been slapped by the deceased. 7. According to the prosecution, PW5 then witnessed the accused emerge carrying a bottle and strike the deceased on the head, causing him to fall. 8. The prosecution relied on the case of **Weka Evans Amira v Republic [2021] eKLR**, where the Court held that where an accused raises an alibi for the first time during the defence hearing, the prosecution cannot be faulted for failing to investigate a defence that had never previously been disclosed. The prosecution submits that the accused's alibi was raised too late to permit meaningful investigation. 9. The prosecution further relied on **Victor Mwendwa Mulinge v Republic [2014] eKLR**, where the Court of Appeal held that while the burden of disproving an alibi remains with the prosecution, a trial court may consider the failure by an accused person to raise the defence at an early stage so that it can be tested during investigations. 10. In this case therefore the prosecution argued that the accused's failure to raise the defence earlier supported the inference that it was an afterthought. 11. The prosecution further cited the decision in **Erick Otieno Meda v Republic [2019] eKLR**, where the Court outlined factors relevant to consideration of an alibi defence, including the need for timely disclosure and the requirement that the prosecution nevertheless prove its case beyond reasonable doubt. 12. The prosecution submitted that the accused neither disclosed the alibi in advance nor supported it through independent evidence. 13. It was further argued that the accused actually placed himself at the scene and admitted having to having had an altercation with the deceased, thereby corroborating important portions of PW5's testimony. 14. The prosecution therefore characterized the defence as a mere denial of participation in the assault rather than a true alibi. 15. The prosecution further invoked the doctrine of common intention and submitted that the accused was charged jointly with another person not before the court and that the prosecution needed not prove that the accused personally inflicted the fatal injury. 16. The prosecution relied on **Abonyo v Republic (Criminal Appeal E241 of 2022) [2025] KECA 608 (KLR)**, where the Court held that it is unnecessary for the prosecution to prove that an accused inflicted the fatal blow so long as it establishes that he acted in concert with others pursuing a common unlawful purpose that culminated in the commission of the offence. 17. The prosecution submitted that PW5's evidence placed the accused among the participants in the assault and that the accused failed to demonstrate any reason why the witness would falsely implicate him. Consequently, it was argued that the defence should be rejected. 18. On the issue of a dying declaration, the prosecution submitted that PW4 testified that he took the deceased to hospital after being informed by PW5 that the deceased was unwell and that the deceased informed him that he had been assaulted by both the accused and Kamunyo. 19. The prosecution relied on that evidence as further linking the accused to the attack that resulted in the deceased's death. 20. The prosecution submitted that the evidence on record established all the ingredients of the offence of murder under section 203 as read with section 204 of the Penal Code. 21. According to the prosecution, the defence tendered by the accused left the prosecution evidence substantially unchallenged and failed to create any reasonable doubt. Accordingly, the prosecution urged the Court to find that the charge had been proved beyond reasonable doubt and to convict the accused as charged. **SUBMISSIONS BY THE DEFENSE** 1. The defense contended that the prosecution had failed to prove the charge of murder against the accused beyond reasonable doubt. 2. Counsel submitted that the burden of proof throughout the proceedings remained upon the prosecution and never shifted to the accused. 3. The defense cited **Woolmington v DPP [1935] AC 462**, where it was stated that the duty of proving the prisoner's guilt rests throughout upon the prosecution. 4. The defence identified five issues for determination, namely;- **i).** whether the charge sheet was fatally defective; **ii).** whether the prosecution proved that the deceased's death resulted from an unlawful act attributable to the accused; **iii).** whether the prosecution evidence was credible, consistent and corroborated; **iv).** whether malice aforethought was established; and **v).** whether the defence raised reasonable doubt. 1. On the first issue, counsel submitted that the charge sheet was materially defective. The accused person’s counsel argued that whereas the murder information alleges that the offence occurred on 31st October 2022, all prosecution witnesses, including PW1, PW4, PW5 and PW6, testified that the events in question occurred on 31st August 2022. 2. The defence contended that the discrepancy relates to a material particular of the charge and was never rectified through amendment. 3. In support of the argument the accused person relied on **Yongo v Republic [1983] eKLR**, where the Court of Appeal held that a charge is defective if it does not accord with the evidence adduced and is likely to mislead the accused. 4. Counsel argued that the accused was called upon to answer to a charge alleging commission of an offence on 31st October 2022 whereas the prosecution sought to prove an offence allegedly committed on 31st August 2022. 5. It was submitted that the discrepancy was prejudicial, violated the accused's constitutional right to be informed of the charge with sufficient detail under Article 50(2)(a) of the Constitution, and could not be cured under section 382 of the Criminal Procedure Code. 6. Turning to the evidence adduced by the prosecution, the defence first attacked the testimony of PW1, the deceased's mother. 7. Counsel submitted that PW1 was not present at the scene and her testimony that the deceased informed her that he had been assaulted by the accused constituted hearsay evidence. Reliance was placed on **Kinyatti v Republic [1984] eKLR**, where the Court held that hearsay evidence is inadmissible and cannot form the basis of a conviction. 8. The defence further noted that PW1 admitted she did not closely follow up on the deceased's condition and even pleaded for forgiveness of the accused, conduct which counsel submits is inconsistent with a firm belief that the accused was responsible for the deceased's death. 9. In relation to the testimony of PW4, the defence submitted that the witness's evidence was in fact exculpatory. According to counsel, PW4 testified that the deceased informed him that he had been assaulted by Kamunyo and did not explain how the injuries had been sustained. The defence argued that this evidence pointed away from the accused and implicated a third party caused the deceased’s death. 10. Counsel cited the case of **Republic v James Kiarie Mutungei [2017] eKLR**, where the Court observed that where the prosecution's own evidence introduces another possible assailant, the benefit of doubt must accrue to the accused. It was therefore submitted that PW4's testimony undermined rather than supported the prosecution’s case. 11. The defence further submitted that PW5, who was presented as the prosecution's eye witness, did not implicate the accused in the fatal assault. Counsel pointed to PW5's evidence that the deceased, the accused and Kamunyo were together and appeared to have been drinking, and that she witnessed Kamunyo strike the deceased with a bottle. 12. The defense emphasized that PW5 did not see the accused assault the deceased and that the alleged weapon was never produced before the court. The defence contended that PW5's evidence therefore failed to place the accused as the person who inflicted the fatal injury. 13. Reliance was placed on **Sawe v Republic [2003] eKLR**, where the Court of Appeal held that suspicion, however strong, cannot form the basis of a conviction and that guilt must be established by evidence. 14. Counsel submitted that at its best, the prosecution evidence raised suspicion only, which fell far short of proof beyond reasonable doubt. 15. The defence also criticized the prosecution's failure to call crucial witnesses. It is submitted that Kamunyo, who was allegedly identified as the assailant, Kelvin Michuki, who allegedly received a dying declaration, and other neighbours who allegedly intervened during the incident, were not called to testify. Reliance is placed on **Bukenya & Others v Uganda [1972] EA 549**, where the Court held that where the prosecution fails to call a witness who would elucidate material facts, the court may infer that the witness's evidence would have been adverse to the prosecution. Counsel submits that the omission to call these witnesses irreparably weakened the prosecution case. 16. As regards the investigating officer's evidence, the defence submitted that PW6 visited the scene two days after the incident and merely repeated information allegedly obtained from other witnesses. Counsel argued that much of PW6's evidence amounted to hearsay and even included matters that had not been testified to by PW5. 17. Counsel relied on **Republic v Kipkering Arap Koske & Another [1949] 16 EACA 135**, where the Court held that inculpatory facts must be incompatible with the innocence of the accused and incapable of explanation upon any other reasonable hypothesis than guilt. The defence submited that the evidence tendered by PW6 failed to attain that standard. 18. On the issue of malice aforethought, counsel submitted that the prosecution failed to establish the mental element required under section 206 of the Penal Code. 19. The defense argued that there was no evidence of prior planning, motive, premeditation, possession of a weapon by the accused, or targeting of a vital organ by the accused. Counsel cited the case of **Nzuki v Republic [1993] eKLR**, where the Court of Appeal held that malice aforethought is not necessarily inferred merely because death occurred. The defence submitted that at most the evidence disclosed a drunken altercation and did not establish the requisite malice necessary to sustain a conviction for murder. 20. The defence further relied upon the accused's sworn testimony. Counsel submitted that the accused gave a coherent and consistent account explaining that he was initially attacked by the deceased using a metal bar, that the subsequent assault was committed by Kamunyo, that his own conduct was defensive in nature, and that his absence thereafter was explained before he later reported to the police. 21. The defence argued that the accused person’s account was consistent with the evidence of PW4 and PW5 and was never displaced by the prosecution. Counsel relied on **Okethi Okale v Republic [1965] EA 555**, where the Court held that an accused person does not bear the burden of proving innocence and that it is sufficient if his explanation raises a reasonable doubt. Counsel submitted that the accused's testimony successfully raised such doubt. 22. The defence therefore urged the Court to find that the charge sheet is materially defective; that the prosecution evidence was contradictory, unreliable and uncorroborated and that the alleged eye witness did not implicate the accused. 23. The defense further argued that malice aforethought was not proved and that the accused's defence raised reasonable doubt. 24. Accordingly, it was submitted that the prosecution failed to prove the offence of murder beyond a reasonable doubt and the Court was urged to acquit the accused under section 215 of the Criminal Procedure Code. **ISSUES FOR DETERMINATION** 1. The issues that arise in this matter are; - **i).** whether the offence of Murder Contrary to Section 203 as read with 204 of the Penal Code was proved beyond a reasonable doubt **ii).** whether the information was materially defective so as to render the trial a nullity **iii).** whether the defense by the accused person raised a reasonable doubt as to whether he was responsible for the death of the deceased. **ANALYSIS AND DETERMINATION** 1. The offence of Murder is established once the prosecution adduces evidence that establishes that the accused person with malice aforethought caused the death of the deceased. 2. The elements of *actus reus* and *mens rea* must be established beyond a reasonable doubt before a court can return a verdict of guilty against the accused person. 3. In **Joseph Githua Njuguna vs Republic (2016) eKLR and Milton** **Kabulit & 4 others v Republic [2015] eKLR** the elements of the offence of murder is settled that, the prosecution must prove: - ***a. The death of the deceased occurred and the cause of that death;*** ***b. The appellant committed the unlawful act which caused the death of the deceased; and*** ***c. The appellant had harbored malice aforethought*** 1. Section 206 of the Penal Code defines Malice aforethought as follows;- Malice aforethought shall be deemed to be established by evidence proving any one 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 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. 1. The proof of any of the four acts or omissions set out above would be sufficient to satisfy the first key ingredient of the offence of murder. 2. In this case the identity of the accused person as one of the people who were involved in a confrontation with the deceased was not in doubt thus identification was not an issue. 3. The accused too admitted in his defense that at the time the deceased suffered the injuries that led to his eventual death he was present though he denied committing the offence. 4. The issue of identification being settled the matter that immediately arises is whether the accused person inflicted the injuries upon the deceased either alone or jointly with others. 5. The prosecution invoked the doctrine of common intention and submitted that the accused was charged jointly with another person not before the court and that the prosecution needed not prove that the accused personally inflicted the fatal injury. 6. The prosecution relied on **Abonyo v Republic (Criminal Appeal E241 of 2022) [2025] KECA 608 (KLR)**, where the Court held that it is unnecessary for the prosecution to prove that an accused inflicted the fatal blow so long as it establishes that he acted in concert with others pursuing a common unlawful purpose that culminated in the commission of the offence. 7. The prosecution submitted that PW5's evidence placed the accused among the participants in the assault and that the accused failed to demonstrate any reason why the witness would falsely implicate him. 8. The evidence of Pw5 was unshaken in cross -examination for she maintained that she witnessed the commotion involving the deceased, Kamnyo and the accused and that she was positive that the said Kamnyo struck the deceased with a bottle on the head as she watched. 9. The accused person had issues with the deceased whom he accused of earlier on having assaulted him and according to his neighbour came asking him about the previous assault visited upon him by the deceased. 10. It does appear to this court therefore that the incident of assault against the deceased was a culmination of pent- up anger on the part of the accused and his friend Kmanyo. 11. The two by confronting the deceased person were certainly prosecuting an unlawful purpose of revenge in the course of which the deceased suffered serious injuries that eventually led to his death. 12. The law does not require the prove of motive in a murder case but in this case clearly there was motive on the part of the accused and his accomplice to punish the deceased for the assault of the accused person. 13. It is important to highlight the fact that even if the accused person had been previously assaulted by the deceased as alleged, it was not open to him and his accomplice Kamnyo to attack the deceased. The incident was a pur classic case of an individual taking the law into his own hands to avenge a wrong committed against him by another. 14. PW7 was **Dr. Johansen Oduor**, the Chief Government pathologist testified that he performed t a post mortem on the body of the deceased and in the course of the examination, he observed that the deceased was of good nutritional status and had a bandaged head. Externally, he noted the presence of a haematoma on the left eye and another on the midline of the forehead. Internally, he found a depressed skull fracture on the left side of the head accompanied by bleeding and damage to the brain tissue on the same side. 15. On the basis of his findings, Dr. Oduor formed the opinion that the cause of death was a severe head injury resulting from **blunt force trauma**. He produced the postmortem report as **Prosecution Exhibit 1 (PExh 1).** 16. The cause of death was thus consistent with an assault thus through forensic evidence the prosecution was able to connect the death of the deceased with an assault thus corroborating the evidence of Pw5 who witnessed the deceased being assaulted by the accused person and one Kamunyo who was never arrested. 17. Pw5 although a remandee at the time of giving her testimony was a witness of truth in this court’s view and she was consistent in her testimony thus even though she was a single identifying witness of the persons who assaulted the deceased, these were persons known to her being her neighbors and even when she went to ask them why they had assaulted the deceased, she told the court that the accused and the accomplice Kmanyo did not own up but they all appeared to have been drunk at the time. 18. PW5: in re-examination stated ;- **“When I went out I saw them fighting. I could see the three. The bottle was the weapon of assault. I saw Kamunyu hitting the deceased on the head.’’** 19. The witness cannot have been mistaken in her evidence and the clarity of mind on her part displaced the theory advanced by the accused regarding the attack. 20. From the analysis of the entire prosecution’s case the commission of the offense does not appear to have been premeditated and all that the prosecution was able to prove beyond a reasonable doubt was the actus reus on the part of the accused and his accomplice. 21. The deceased would have survived the assault had he sought proper medical care which from the analysis of the evidence from his mother appears not to have happened. 22. Pw4 Zachariah Mwangi attempted to take the deceased to hospital at some point but he was reluctant. The deceased by his own conduct also contributed to the incident by assaulting the accused prior to the assault against him and his conduct of declining to seek medical care cannot escape the eye of this court. 23. The prosecution successfully connected the accused to the actual assault and all the direct and circumstantial evidence tendered concerning the incident points at him and Kamnyo as the persons who were responsible for the deceased’s death. 24. The two accused persons did not bear the necessary malice aforethought to cause the death but in this court’s view, acted with culpable negligence. 25. To inflict a blow on an individual’s head is prima facie an act of culpable negligence since the head houses the brain which is central to one’s life and any injury thereto would most likely result in the death of a person or may lead to his incapacitation. 26. The joint tortious act of the accused and the deceased satisfies the ingredients of the offence of Manslaughter as opposed to murder. 27. In **Republic v Rotich (Criminal Case 43 of 2023) [2024] KEHC 16040 (KLR) (Crim) (17 December 2024) the court held that;- “**The ingredients of manslaughter in Kenya include: * Unlawful act: The accused intentionally committed an unlawful act. This act must be dangerous or involve a significant risk of injury to the victim. * Culpable negligence: The accused's act or omission constituted culpable negligence. * No malice aforethought: The accused did not act with malice aforethought. section 202 (1) [*Penal Code*](https://kenyalaw.org/akn/ke/act/1948/81) which defines the offence of manslaughter as: “Any person who by an unlawful act or omission causes the death of another person is guilty of the felony termed as manslaughter.” 1. The accused person in this matter with his accomplice committed an unlawful act of assault which led to the deceased’s death. 2. The attack happened in circumstances that the deceased, the accused and his accomplice are said to have been under the influence of alcohol though not intoxicated enough to afford the accused and his accomplice the defense of intoxication. 3. In the case of **Mancini v Director of Public prosecutions 1964 CR A** page, it was held by the House of Lords that to reduce an offence of murder to manslaughter it is necessary to take into account the instrument with which the homicide was effected. ***“in applying the test it is of particular importance……to take into account the instrument with which the homicide was effected, for to retort, on the heat of passion induced by a simple blow is a very different thing from making use of a deadly instrument like a concealed dagger. In short, the mode of resentment must bear a reasonable relationship to the provocation if the offence is to be reduced to manslaughter.”*** 1. The accused and his accomplice did not use weapons that could indicate any degree of premeditation according to the evidence of Pw5. The bottle used must have been in their hands from their drinking escapade. **DEFENSE OF THE ACCUSED** 1. The accused cannot also avail himself of the defense of self -defense because the attack happened long after their initial encounter with the deceased. It appears to have been a calculated act of disciplining the deceased as opposed to a pre- meditated act to kill the deceased. 2. The court has evaluated his defense but is not persuaded that the accused was just a by stander as Kamnyo assaulted the deceased as he would have wanted the court to believe. He was the aggrieved party here seeking revenge if anything. The defense in this courts view amounted to a mere denial and is hereby rejected. 3. The case of **Ismail v. Uganda Cr. Appeal No. 6 of 1978** clearly explains on the characteristic features of the doctrine of common intention in the following language: “In order to make the doctrine of common intention applicable, it must be shown that the accused had shared with the actual perpetrator of the crime, a common intention to pursue a specific unlawful purpose, which led to the commission of the offence. If it can be shown that the accused persons shared with one another a common intention to pursue a specific unlawful purpose and in the prosecution of that unlawful purpose, an offence was committed, the doctrine of common intention would apply irrespective of whether the offence committed was murder or manslaughter. It is now settled law that an unlawful common intention does not imply a pre-arranged plan. **Common intention may be inferred from the presence of the accused persons, their actions and the omission of any one of them to disassociate himself/herself from the assault. It can develop in the course of events though it might not have been present from the start. It is immaterial whether the original common intention was lawful so long as an unlawful purpose develops in the course of events. It is also irrelevant whether the two participated in the commission of the offence. Where the doctrine of common intention applies, it is not necessary to make a finding as to who actually caused the death.” (emphasis added).** 1. The case of the accused squarely falls within this description and thus i am satisfied that the prosecution established the common intention on the part of the accused. **DEFECT IN THE MURDER INFORMATION** 1. The defense raised the issue of the defect of the murder information and urged the court to hold the defects in dates of the commission of offence as per the murder information and the dates as per the evidence against the prosecution. 2. The accused person’s counsel argued that whereas the murder information alleges that the offence occurred on 31st October 2022, all prosecution witnesses, including PW1, PW4, PW5 and PW6, testified that the events in question occurred on 31st August 2022. 3. The court notes that the particulars of an information under Section 134 of the Criminal Procedure Code are meant to inform the accused of the specific offence he faces and in a case of murder the relevant details in particulars would include details of the deceased, the place of commission of the offence, the identity of the accused as well as the dates. 4. The only issue raised by the defense is that of the dates and no other. The court would thus be guided by the evidence tendered by the witnesses in support of the information to determine whether the accused was sufficiently informed and able to mount a defense. 5. In considering defects to charges and information the court has to address its mind to the nature of the defect alleged and determine whether the defect identified rendered the trial unfair and or prejudicial to the accused. 6. The court must be satisfied that the defect is fundamental and by reason of it the accused person was unable to understand the charge facing him and as result therefore he was unable to mount a defense. 7. The Court of Appeal (Nambuye, Maraga & J. Mohammed, JJA), in Peter Ngure Mwangi v Republic [2014] KECA 405 KLR, stated that: “A charge can also be defective if it is in variance with the evidence adduced in its support. Quoting with approval from Archbold, Criminal Pleading, Evidence and Practice (40th Edition), page 52 paragraph 53, this Court stated in Yongo v R, [1983] eKLR that: ‘In England, it has been said: An indictment is defective not only when it is bad on the face of it, but also: i. when it does not accord with the evidence before the committing magistrates either because of inaccuracies or deficiencies in the indictment or because the indictment charges offences not disclosed in that evidence or fails to charge an offence which is disclosed therein, ii. when for such reason it does not accord with the evidence given at the trial.” 8. Therefore, it is clear from a reading of the authorities above that it is not every defect in a charge or information that will vitiate a trial. 9. In the instant case the evidence by the prosecution as well as the defense of the accused clearly demonstrates that the accused understood the charge he faced and that the particulars set out in the murder information were sufficient enough to inform him of the specific offence. The trial cannot therefore be said to have been unfair to him. 10. The Court of Appeal in **Benard Ombuna v Republic [2019] KECA 994 KLR,** this Court (Visram, Karanja & Koome, JJA) stated on the issue of a defective charge sheet that: “15. In a nutshell, the test of whether a charge sheet is fatally defective is substantive rather than formalistic. Of relevance is whether a defect on the charge sheet prejudiced the appellant to the extent that he was not aware of or at least he was confused with respect to the nature of the charges preferred against him and as a result, he was not able to put up an appropriate defence.” 11. That cannot be said of the accused in this case and the defect highlighted by the defense considering the totality of the evidence. The challenge on the defect in dates appearing on the murder information therefore fails. 12. The prosecution in this matter was therefore able to establish beyond a reasonable doubt that the accused committed the offence of Manslaughter. In the locus classicus case of Denning J, as he then was in **Miller v Ministry of Pensions [1947] 2 AII ER 372** he stated as follows: “That degree is well settled. It need not reach certainty, but it must carry a high degree of probability. Proof beyond reasonable doubt does not mean proof beyond the shadow of doubt. The law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice. If the evidence is so strong against a man as to leave only a remote possibility in his favour which can be dismissed with the sentence ‘of course it is possible, but not in the least probable’ the case is proved beyond reasonable doubt, but nothing short of that will suffice.” 13. The Supreme Court of Nigeria in Bakare vs State (1985) 2 NWLR stated as follows: “Proof beyond reasonable doubt stems out of the compelling presumption of innocence inherent in our adversary system of criminal justice. To displace the presumption, the evidence of the prosecution must prove beyond reasonable doubt that the person accused is guilty of the offence charged. Absolute certainty is impossible in any human adventure, including the administration of criminal justice. Proof beyond reasonable doubt means just what it says, not admit of plausible possibilities and fanciful possibilities but it does admit a high degree of cogency consistent with an equally high degree of probability.” 1. The prosecution evidence attained the standard set out above. The accused person is therefore found guilty of the offence of Manslaughter and accordingly convicted of the offence of Manslaughter contrary Section 202 as read with 205 of the Penal Code. 2. It is so ordered. **DATED, SIGNED** and **DELIVERED VIRTUALLY** at **NAIROBI** this **17th** day of **AUGUST, 2026.** 1. **M. MUTETI** **JUDGE** **In the presence of:** Habiba: Court Assistant Okusimba for state Atanda for Accused Accused: Present