https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8785

**** **REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT NYANDARUA** **CRIMINAL CASE NO. E002 OF 2023** **REPUBLIC...........................................................................................................PROSECUTOR** **JAMES WAINAINA KARIUKI…………………………………………...……… ACCUSED** **JUDGMENT** 1. James Wainaina Kariuki is charged with two counts 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 2oth and 21st day of September 2023, at Ndunyu Njeru Township, in North Kinangop sub-county, within Nyandarua County, he unlawfully murdered Susan Wanja Wagura. 3. The prosecution's case is that the accused and the deceased were lovers. The deceased was found dead on the bed with severe cuts on her body, and the accused had an injury on the neck. The accused was charged with her murder. 4. James Wainaina Kariuki, the accused, stated that he had consumed alcohol and gone to bed on the night in question. He denied committing the murder of the deceased. 5. The issues to be decided are: a) whether the accused caused the fatal injuries to the deceased; and b) whether the crime of murder has been established against the accused. 1. It is undisputed that the victim's body was discovered in the defendant's house, lying dead on the bed. When Dr Ngulungu performed a post-mortem on the body on 23 September 2023, he concluded that the cause of death was a severe head injury, with skull fracture, brain laceration, and blood loss due to multiple slash wounds to the head, face, and upper limbs. 2. Monicah Mwihaki Wagura (PW1) testified that the deceased was her mother. On the night of 20th September 2023, the accused called her (the deceased) and informed her that he was unwell. The deceased, therefore, went to check on him and did not return. On the 21st September 2023, her (PW1’s) grandmother sent her to the accused's house at about midday. She found a large crowd outside the house, and upon entering the house, she found her mother dead, lying on the bed, together with the accused, who was bleeding from the neck. 3. Gladys Wangare Chege (PW4) is the neighbour of the accused. She testified that at around 9 a.m. on the 21st September of 2023, she saw the accused sunbathing and listening to music from his house. They greeted each other before she resumed her errands. Around noon, she saw a large crowd heading toward her home. She followed and found a gathering outside the accused's residence. She was told that someone had been killed, but she did not enter the house. 4. Joshua Koskey Jerotich (PW5) testified that his friend, the accused, called him to say he was at his house and feeling unwell. He asked to be taken to the hospital. When he arrived an hour later, he found the accused lying on the bed, bleeding from the neck. They reported the incident to the police, who then instructed them to take him to the hospital. 5. James Wainaina Kariuki, the accused, stated that he drank alcohol the night before and went to bed. He injured his neck at home and lost consciousness, later waking up in the hospital. He denied killing the deceased. 6. The accused's claim is unlikely to be true. Gladys Wangare Chege (PW4) observed him relaxing at 9 a.m., and he appeared normal. Joshua Koskey Jerotich (PW5) testified that the accused contacted him around midday, claiming he was unwell. The injuries the accused had seem to be self-inflicted, possibly between 9 am. and midday on September 21, 2023. 7. I, therefore, find that the prosecution has proved to the required standards that the accused caused the death of the deceased. 8. 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).*** 1. 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.*** 1. There is no evidence about what happened between them before the deceased's death. I conclude that the prosecution has not proven the murder charge against the accused. Therefore, I acquit him of murder. However, I find that the charge of manslaughter under section 205 of the Penal Code has been proven beyond a reasonable doubt. I find him guilty and convict him of this offence. **Delivered and signed at Nyandarua, this 23rd day of June 2026** **KIARIE WAWERU KIARIE** **JUDGE**