https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8786

**** **REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT NYANDARUA** **CRIMINAL CASE NO. 70 OF 2023** **REPUBLIC...........................................................................................................PROSECUTOR** **VERSUS** **SIMON MWANGI KARANJA…………………………….......................................ACCUSED** **JUDGMENT** 1. Simon Mwangi Karanjais charged with an offence of murder contrary to section 203 as read with section 204 of the Penal Code. 2. The particulars of the offence are that on the 21st day of March, 2022, at Machinery sub- Location, Kipipiri Sub-County of Nyandarua County, willingly and unlawfully murdered Raphael Kinyanjui Mwangi. 3. According to the prosecution's evidence, the deceased insulted the accused, who did not answer but instead drew a knife and stabbed the deceased, resulting in the deceased's death. 4. The accused's defence suggests the deceased was also the aggressor, stating that after insults, he and a friend chose to leave, but the deceased continued to pursue them. About 100 meters away, the deceased caught up, grabbed him by the neck from behind, leading to a struggle. During the fight, the deceased, who was armed with a knife, was stabbed in the stomach amidst the struggle. 5. The issues for determination are: a) Who was the aggressor between the accused and the deceased. b) Whether the accused committed the offence with which he is charged. 1. Phangarathiu Gikonyo Wanjohi (PW1) was somewhat cagey during his testimony. While he clearly stated that the deceased was the one insulting the accused, he at one point mentioned that the two were exchanging words that he did not hear. He described the incident as the accused not responding to the insults but instead drawing a knife and stabbing the deceased. During cross-examination, he admitted that the deceased asked the accused whether he was circumcised. He also agreed that the accused left the house, and the deceased followed him outside. Additionally, he said he did not see what the deceased did when he caught up to the accused. 2. In his defence, Simon Mwangi Karanja, the accused, stated that the deceased and Gikonyo (PW1) began harassing him and his friend Peter Gathongo. They were inside a home with some initiates and decided to leave. About 100 meters away, the deceased and PW1 caught up, with the deceased grabbing him from behind by the neck. During a struggle over a knife he had, the deceased was stabbed in the stomach. This version was supported by the evidence of John Munene (DW2). He said that the deceased and PW1 were asking the accused and Peter to undress so they could check whether they were circumcised. 3. The record clearly indicates that both the deceased and PW1 were the aggressors. It also clarifies why PW1, at times, seemed incoherent and contradicted his own testimony. 4. Section 17 of the Penal Code, Cap 63,provides that: ***Subject to any express provisions in this Code or any other law in operation in Kenya, criminal responsibility for the use of force in the defence of person or property shall be determined according to the principles of English Common Law.*** 1. The Court of Appeal in the case of **Ahmed Mohammed Omar & 5 others v Republic [2014] eKLR** agreed with the principles on the issue as laid down by the Privy Council in **PALMER v R [1971] A.C. 814**. The decision was approved and followed by the Court of Appeal in **R v McINNES, 55 Cr. App. R. 551**. Lord Morris, delivering the judgment of the Board, said: ***It is both good law and good sense that a man who is attacked may defend himself. It is both good law and common sense that he may do, but may only do, what is reasonably necessary. But everything will depend upon the particular facts and circumstances. …Some attacks may be serious and dangerous. Others may not be. If there is some relatively minor attack, it would not be common sense to permit some act of retaliation which was wholly out of proportion to the necessities of the situation. If an attack is serious so that it puts someone in immediate peril, then immediate defensive action may be necessary. If the moment is one of crisis for someone in immediate danger, he may have to avert the danger by some instant reaction. If the attack is over and no sort of peril remains, then the employment of force may be way of revenge or punishment or by way of paying off an old score or may be pure aggression. There may be no longer any link with a necessity of defence. ….. The defence of self-defence either succeeds so as to result in an acquittal, or it is disproved, in which case, as a defence, it is rejected. In a homicide case, the circumstances may be such that it will become an issue as to whether there was provocation so that the verdict might be one of manslaughter. Any other possible issues will remain. If, in any case, the view is possible that the intent necessary to constitute the crime of murder was lacking, then the matter would be left to the jury.*** 1. The deceased was the aggressor. After the harassment, the accused left the scene, but the deceased pursued him and kept harassing him. I am convinced that the deceased was the one with the knife and that the accused acted in self-defence. Therefore, I find that the prosecution has not proven the murder charge beyond a reasonable doubt, and I acquit him, releasing him unless there is a lawful reason to detain him. **Delivered and signed at Nyandarua, this 23rd day of June, 2026** **KIARIE WAWERU KIARIE** **JUDGE**