https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8552

Republic v Githinji (Criminal Case E001 of 2024) [2026] KEHC 8552 (KLR) (Crim) (18 June 2026) (Judgment) Neutral citation: [2026] KEHC 8552 (KLR) Republic of Kenya In the High Court at Nyandarua Criminal Criminal Case E001 of 2024 KW Kiarie, J June 18, 2026 Between Republic Prosecutor and Harrison Gicheha Githinji Accused Judgment 1.Harrison Gicheha Githinji is charged with murder contrary to section 203 as read with section 204 of the Penal Code. 2.The particulars of the offence are that on the 2nd day of September 2022, at Soilo village, in Kinangop sub-county, within Nyandarua County, he unlawfully murdered Leah Waithira Githinji. 3.The prosecution's case is that the accused disagreed with his mother over unknown issues. He used a stick that had a nut at one end to beat her. She succumbed to the injuries. 4.Harrison Gicheha Githinji, the accused, stated that he was feeling unwell when he visited his mother’s house. She provided him with food and tea. He then mentioned to the deceased that he was experiencing visions of things with open mouths. When he shared this with her, she advised him to pray. The last thing he remembers seeing was something that resembled a cat. 5.The issues to be determined are:a)Whether the accused caused the death of the deceased,b)Whether the accused was aware of his actions, andc)Whether there is sufficient evidence to prove the offence of murder against the accused. 6.Joy Muthoni (PW6), granddaughter of the deceased, testified that the accused entered the house where she and her grandmother, the deceased, were. The deceased lit a solar lamp. The accused was holding some food. She asked why he was eating the baby’s food. He told her to be quiet, then picked a walking stick from under the bed. He pointed to the wall, saying, “Even these ones you have sold to the devil,” and claimed she was his sister, not his mother. He went on to argue. When he demanded keys which were not given, he pulled the deceased, causing her to yell. He pushed her, making her hit the wall, then hit her on the head with the walking stick. The deceased ran out, pursued by him as he continued beating her. When this witness pursued them, he threatened to beat her too, causing her to run away. At that moment, the deceased was lying near a latrine. 7.Samuel Githinji Kung’u (PW2), the deceased’s grandson, saw her lying on the ground when he arrived. The accused was hitting her with a stick. He was able to see what was happening with the help of the accused's rechargeable lamp. 8.Benson Ruhi Githinji (PW7) testified that upon arriving at the scene, he saw the accused hitting the deceased with a walking stick. When he inquired why the accused was beating her, he did not answer and only roared. 9.Dr Titus Ngulungu conducted the post-mortem on the deceased's body and concluded that death resulted from severe head injuries. She had a skull fracture, brain contusions, and experienced blood loss and had multiple blunt head traumas. 10.Harrison Gicheha Githinji, the accused, explained that he visited his mother’s house, where she offered him food and tea. He told her he was seeing “things' opening their mouths. His mother prayed for him and said that if it continued, he should be taken to the hospital the next day. He then saw what looked like a cat, after which he cannot remember what happened next. 11.The evidence on record clearly shows that the accused was the cause of his mother's death. 12.Generally, in order to arrive at a conclusion that an offence has been committed, the prosecution must prove the existence of both the actus reus and the mens rea. To convict for murder based on the evidence on record, the prosecution must prove the existence of malice aforethought. In Black’s Law Dictionary, 10th Edition, malice aforethought is defined as:The requisite mental state for common-law murder, encompassing any one of the following (1) the intent to kill (2) the intent to inflict grievous bodily harm (3) extremely reckless difference to the value of human life (the so-called “abandoned and malignant heart”), or (4) the intent to commit a dangerous felony (which leads to culpability under the felony-murder rule). 13.Section 206 of the Penal Code gives instances when malice aforethought may be proved. It provides: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. 14.The narration by both the prosecution witnesses and the accused points to a person who was not in control of his actions. When he was examined by a psychiatrist on the 14th day of September 2022, this is what was observed:He was unkempt, handcuffed, singing and would hit his head with his hand while leaning behind the chair. His mood was euthymic, affect labile, and speech was pressured. He had grandiose delusions, saying he was born a genius, a doctor who had gone to Egerton and Makerere universities. He had also had paranoid delusions. In his thought process, he had flights of ideas. Oriented in place, the year he was not sure, 2022/2023 and a month, he said it was the 8th month. Abstract thinking is good- could explain a proverb. Insight is not present.He therefore concluded that he was of unsound mind and was unfit to stand trial. The accused was found fit to stand trial following the examination on 28th September 2023. 15.The Court of Appeal in Wakesho v Republic (Criminal Appeal 8 of 2016) [2021] KECA 223 (KLR), while allowing the appeal, stated as follows:“13.Judicial opinion was divided on the constitutionality of some of the provisions of section 166 of the Criminal Procedure Code. It was a matter on which the state of the law was unsatisfactory and in dire need of reform and the Attorney General should have taken immediate steps to initiate reforms. 14.Reforms were needed to the provisions of section 166 of the Criminal Procedure Code in two respects:1.it was a legal paradox to find a person guilty but insane, in light of the requirements of criminal responsibility and culpability, which required that for a person to be criminally liable, it had to be established beyond a reasonable doubt that he or she committed the offence or omitted to act voluntarily and with a blameworthy mind. A finding of not guilty for reason of insanity would be more legally sound in circumstances where an accused person was suffering from a defect of reason caused by a disease of the mind at the time of the commission of an offence. The court should have been granted discretion to impose appropriate measures to suit the circumstances of each case, upon a finding of not guilty by reason of insanity.2.The subs-stratum of the provisions as regards the right to a fair trial in criminal cases in Article 50(2) of the Constitution was that an accused person should have been fully informed, understood, and thereby effectively participated in a criminal trial. To go through the motions of a trial whose nature and effect an accused person did not from the outset understand or appreciate, and be convicted on the basis of such a trial as was provided for in section 166 of the Criminal Procedure Act, was manifestly unfair in light of Kenya’s current constitutional dispensation. 16.Based on the evidence from both sides, I conclude that the accused was unable to form the essential intent for the crime. The accused lacked the required mens rea. I concur with the Court of Appeal's decision in Wakesho v Republic (supra). Therefore, I acquit him of murder and order his release unless he is lawfully detained for other reasons. DELIVERED AND SIGNED AT NYANDARUA, THIS 18TH DAY OF JUNE 2026KIARIE WAWERU KIARIEJUDGE