https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9927

Republic v Kazungu (Criminal Case E019 of 2025) [2026] KEHC 9927 (KLR) (18 June 2026) (Judgment) Neutral citation: [2026] KEHC 9927 (KLR) Republic of Kenya In the High Court at Mombasa Criminal Case E019 of 2025 WM Kagendo., J June 18, 2026 Between Republic Prosecution and Emmanuel Kazungu Accused Judgment Introduction 1.This case has its genesis in a dispute over a mobile phone, namely a Techno Pop 9, grey in colour, produced as PEXH.2. The phone, had been purchased by the accused person for PW3, Purity Wavinya, who was at the material time his girlfriend. 2.The relationship between the accused and PW3 subsequently deteriorated. On 2 December 2025, they encountered each other along a public pathway. The accused demanded the return of the phone. At the time, the phone was in the possession of PW3's friend, one Lucia. Evidence was led that one Iddi took the phone from Lucia and handed it to the accused. The accused thereafter removed PW3's SIM cards and returned them to her while retaining the handset. 3.PW3 testified that she became distressed and left the scene in tears. Along the way she met her uncle, PW1, Kahindi Safari Kalume, to whom she narrated the incident. They returned to search for the accused but did not find him. 4.Although PW3 stated that she wished to let the matter rest, evidence emerged that some of her relatives later confronted Iddi regarding the incident and confiscated his mobile phone, allegedly informing him that it would only be returned once PW3's phone had been recovered. The accused's position was that the events giving rise to this case were a continuation of the hostility generated by the phone dispute. The Charge 5.The accused, Emmanuel Mshamba Kazungu alias Manucho, was charged with the offence of murder contrary to Section 203 as read together with Section 204 of the Penal Code. Particulars Of The Offence 6.The particulars are that on 6 December 2025 at Chaani Viteck Area within Changamwe Sub-County in Mombasa County, the accused murdered Kalume Safari Kalume. The Prosecution Case 7.The prosecution called seven (7) witnesses in support of its case. 8.PW1, Kahindi Safari Kalume, and PW4, Karisa Safari Kalume, were relatives of the deceased who became involved after the incident had already occurred. Their evidence largely related to events following the assault. 9.PW6, Simon Ndunda Mysoki, was the boda boda rider who transported the deceased to hospital following the attack. 10.PW5, Dr. Tawheed Hassan, conducted the post-mortem examination and produced the post-mortem report as PEXH.1. 11.PW7, CPL Antony Njiha, was the investigating officer. 12.The principal eyewitness was PW2, James Mutisya Kitiku. His testimony was that on 6 December 2025 he was walking home from work in the company of the deceased, Kalume Safari Kalume. They were using a footpath that passed near the accused's residence. 13.According to PW2, the accused emerged and confronted them aggressively. He demanded to know what they had allegedly been saying about him, uttering the words:“mlikuwa mnasema nini?" 14.PW2 testified that he attempted to intervene and asked what the problem was, as he did not understand the source of the hostility. Rather than responding, the accused instructed his younger brother to fetch a knife. 15.PW2 stated that when the knife was brought, he attempted to calm thesituation and urged the accused to explain the grievance. Instead, the accused took possession of the knife and began brandishing it threateningly. 16.PW2 testified that the accused repeatedly swung the knife at him. As he attempted to evade the blows, he sustained an injury to the face. 17.PW2 further testified that during the confrontation, the accused uttered the words:“Leo lazima niue mtu."Translated into English, the statement means:“Today I must kill someone." 18.PW2 stated that in an effort to deter the accused, he picked up a stone and threw it onto the roof of a nearby house. According to him, the intention was merely to scare the accused and create an opportunity to escape. 19.During the same confrontation, the accused slashed the deceased on the face. The deceased similarly picked up a stone and threw it into the air before attempting to flee. 20.PW2 testified that he also ran away in a different direction. The accused initially pursued him for a short distance while continuing to hurl threats and insults. He then abandoned that pursuit and turned his attention to the deceased. 21.PW2 proceeded to inform the deceased's relatives of the attack. When he returned to the scene, he found the deceased being transported to hospital on a motorcycle. He later learnt that the deceased had succumbed to his injuries. 22.Upon considering the prosecution evidence, this Court found that a prima facie case had been established and placed the accused on his defence. The Defence Case 23.The accused elected to give sworn testimony. 24.He stated that on the material day he was at home when PW2 and the deceased allegedly attacked him without provocation. 25.According to the accused, the two men were armed with pangas and stones and assaulted him. He claimed not to know the reason for the attack. 26.He admitted that a few days earlier he had repossessed the mobile phone that he had purchased for PW3. He further stated that, following that incident, some persons associated with PW3 had attacked Iddi and confiscated Iddi's mobile phone. 27.The accused contended that the deceased and PW2 formed part of the same group that had earlier harassed Iddi. 28.He testified that after being attacked he armed himself with a knife in order to defend himself. He maintained that he had no intention of killing the deceased. 29.According to the accused, any injury sustained by the deceased occurred during the course of his attempt to defend himself from what he perceived to be a violent attack. The Law 30.Section 203 of the Penal Code provides:“Any person who of malice aforethought causes death of another person by an unlawful act or omission is guilty of murder.” 31.Section 204 of the Penal Code prescribes the sentence upon conviction for murder. 32.Section 206 of the Penal Code sets out the circumstances under which malice aforethought may be established. It provides that malice aforethought shall be deemed to be established by evidence proving, inter alia:a.an intention to cause death or grievous harm;b.knowledge that death or grievous harm will probably result from the act complained of;c.an intention to commit a felony; ord.an intention to facilitate the escape of a felon. 33.The Court of Appeal in Anthony Ndegwa Ngari v Republic [2014] eKLR reiterated that the prosecution must prove beyond reasonable doubt:a.the fact and cause of death;b.that the death was caused by an unlawful act or omission attributable to the accused; andc.that the accused acted with malice aforethought. 34.In Bonaya Tutu Ipu & Another v Republic [2015] eKLR, the Court of Appeal similarly affirmed that proof of these ingredients is essential before a conviction for murder can be sustained. 35.With regard to malice aforethought, the Court of Appeal in Nzuki v Republic [1993] KLR 171 emphasized that malice aforethought is a question offact to be inferred from all the surrounding circumstances. 36.In Republic v Tubere s/o Ochen [1945] 12 EACA 63, the former Court of Appeal for Eastern Africa held that the court may infer malice aforethought from:a.the nature of the weapon used;b.the manner in which it was used;c.the part of the body targeted; andd.the conduct of the accused before, during and after the attack. Analysis And Determination Fact And Cause Of Death 37.The first issue for determination is whether the death of the deceased, Kalume Safari Kalume, and its cause were proved beyond reasonable doubt. 38.There was no dispute that the deceased died following the incident of 6 December 2025. The evidence of PW1, PW4, and PW6 established that the deceased was rushed to the hospital after sustaining serious injuries and was later pronounced dead. 39.More importantly, PW5, Dr. Tawheed Hassan, conducted a post-mortem examination on the body of the deceased and produced the post-mortem report as PEXH.1. 40.The post-mortem examination revealed a penetrating stab wound on the posterior aspect of the left chest at the level of the fourth rib measuring approximately 1 cm by 1 cm. Additional external injuries included cuts to the face and injuries to the lower limbs. 41.Internally, the examination disclosed extensive damage. The left lung had collapsed, and there was massive bleeding within the chest cavity. Blood was also found within the pericardial sac. Significantly, the stab wound had penetrated the posterior aspect of the pericardium and extended to the base of the aorta and the left ventricle. 42.PW5 formed the opinion that the cause of death was haemopericardium and left-sided haemothorax resulting from a penetrating stab injury to the chest. 43.The medical evidence was neither challenged nor contradicted. The Court is therefore satisfied that the fact and cause of death were proved beyond reasonable doubt. Whether The Accused Caused The Death Of The Deceased 44.The second issue is whether the fatal injury was inflicted by the accused and whether the act was unlawful. 45.The evidence of PW2 was direct, consistent and largely unshaken during cross-examination. He testified that the accused confronted him and the deceased aggressively and demanded to know what they had allegedly been saying about him. 46.According to PW2, the accused escalated the confrontation by sending his younger brother to fetch a knife. The knife was brought and handed to him. 47.PW2 testified that the accused immediately began wielding the knife and threatening both him and the deceased. During the confrontation, the accused cut PW2 on the face and continued advancing towards them. 48.PW2 further testified that the accused repeatedly threatened them and eventually chased both men as they fled from the scene. 49.Most importantly, PW2 stated that after he and the deceased ran in different directions, the accused abandoned his pursuit of PW2 and turned his attention to the deceased. 50.The accused himself admitted during cross-examination that he stabbed the deceased. He further admitted that the stab wound was inflicted from behind. 51.That admission is highly significant. It corroborates the prosecution evidence that the deceased was fleeing when he was attacked. 52.The medical evidence equally supports that conclusion. The fatal wound was located on the posterior aspect of the chest. Such placement is consistent with an attack from behind and inconsistent with a face-to-face confrontation. 53.The Court therefore finds as a fact that it was the accused who inflicted the fatal injury that caused the death of the deceased. The Defence Of Self-defence 54.The accused contended that he acted in self-defence after allegedly being attacked by the deceased and PW2, whom he claimed were armed with pangas and stones. 55.Section 17 of the Penal Code provides that criminal responsibility for the use of force in defence of person or property shall be determined according to the principles of English Common Law. 56.The law recognizes the right of a person who is under attack to defend himself. However, the force used must be reasonably necessary and proportionate to the danger faced. 57.In Ahmed Mohammed Omar & 5 Others v Republic [2014] eKLR, the Court of Appeal adopted the principles set out in Palmer v R [1971] AC 814 and held that:“A person who is attacked may defend himself. He may do what is reasonably necessary. If there has been an attack so that defence is reasonably necessary, it should be recognized that a person defending himself cannot weigh to a nicety the exact measure of his necessary defensive action.” 58.The Court of Appeal nevertheless emphasized that the law does not permit excessive retaliation or the use of force once the danger has ceased. 59.Once evidence suggesting self-defence is raised, the burden remains on the prosecution to disprove that defence beyond reasonable doubt. See Ahmed Mohammed Omar & 5 Others v Republic [2014] eKLR and DPP v Morgan [1976] AC 182. 60.Having carefully considered the evidence, I am satisfied that the prosecution successfully disproved the defence of self-defence. 61.First, the accused alleged that he had been attacked by two men armed with pangas and stones. Yet he suffered no injury whatsoever. 62.No treatment notes, medical records, P3 Form or independent evidence were produced to support the allegation that he had been assaulted. 63.Secondly, if indeed the deceased and PW2 were the aggressors, it is difficult to understand how the accused was able to chase them as they fled. 64.The evidence before Court demonstrates that it was PW2 and the deceased who retreated from the confrontation while the accused actively pursued them. 65.Thirdly, the accused admitted that he stabbed the deceased from behind. A person who is fleeing ordinarily poses no immediate threat requiring the use of lethal force. 66.Fourthly, the severity of the injury inflicted demonstrates that the force employed was far beyond what could reasonably be described as defensive. 67.The stab wound penetrated the chest cavity, collapsed the lung, pierced the pericardium and extended to the base of the aorta and left ventricle. Such force is indicative of a deliberate and powerful thrust. 68.Fifthly, although the accused claimed that PW2 and the deceased were armed with pangas, no panga was recovered, produced in evidence or linked to either of them. 69.The Court also notes that despite alleging a violent attack by two armed men, the accused was completely uninjured. That assertion is inconsistent with ordinary human experience and significantly undermines the credibility of his account. 70.The Court is therefore satisfied that any danger that may have existed had ceased by the time the deceased fled. The accused was no longer acting defensively. By pursuing and stabbing the deceased from behind, he became the aggressor. 71.Accordingly, the defence of self-defence is rejected. Whether malice aforethought was proved. 72.The final issue is whether the prosecution proved malice aforethought as required under Sections 203 and 206 of the Penal Code. 73.In determining whether malice aforethought exists, the Court is guided by the principles stated in Republic v Tubere s/o Ochen [1945] 12 EACA 63, Nzuki v Republic [1993] KLR 171 and Bonaya Tutu Ipu & Another v Republic [2015] eKLR. 74.The Court must consider the weapon used, the manner in which it was used, the part of the body targeted and the conduct of the accused before, during and after the attack. 75.Several circumstances in this case irresistibly point to the existence of malice aforethought. 76.First, the accused deliberately armed himself by instructing his younger brother to fetch a knife. This was not a spontaneous reaction. It demonstrated preparation and a conscious decision to escalate the confrontation. 77.Secondly, before launching the attack, the accused uttered the words: “Leo lazima niue mtu.”Translated, the statement means:“Today I must kill someone.” 78.The statement was heard by PW2 and remained unshaken throughout cross-examination. It clearly revealed an intention to kill or at the very least to cause grievous bodily harm. 79.Thirdly, the accused used a lethal weapon, namely a knife. 80.Fourthly, he directed the attack towards a vulnerable and vital part of the body, namely the chest. 81.Fifthly, the force employed was extraordinary. The knife penetrated through the chest wall, damaged the lung, pierced the pericardium and extended to structures adjacent to the heart and major blood vessels. 82.A person who intentionally drives a knife into another person's chest with such force must be taken to know that death or grievous harm is a probable consequence. 83.Sixthly, the deceased was stabbed from behind while attempting to flee from the attack. 84.The pursuit of a retreating victim followed by a forceful stab to a vital organ demonstrates a settled intention to cause death or grievous harm. 85.The accused's conduct before, during and after the attack therefore satisfies the requirements of Section 206(a) and (b) of the Penal Code. 86.I consequently find that malice aforethought was proved beyond reasonable doubt. Determination 87.Having carefully considered all the evidence on record, the submissions of counsel and the applicable law, I make the following findings:a.The death of Kalume Safari Kalume was proved beyond any reasonable doubt;b.The death resulted from a stab injury unlawfully inflicted by the accused;c.The defence of self-defence was disproved beyond any reasonable doubt;d.The accused acted with malice aforethought within the meaning of Section 206 of the Penal Code. 88.Accordingly, I find that the prosecution proved all the ingredients of the offence of murder contrary to Section 203 as read together with Section 204 of the Penal Code beyond reasonable doubt. 89.Consequently, I find the accused, Emmanuel Mshamba Kazungu Alias Manucho, Guilty of the offence of murder contrary to section 203 as read with section 204 of the Penal Code and convict him accordingly under Section 322 of the Criminal Procedure Code. DATED, GNED AND DELIVERED AT MOMBASA THIS 18TH DAY OF JUNE 2026. HON. LADY JUSTICE W. K. MICHENIJUDGEIn the Presence of:The accused person and his advocate, Ms Kuria Ms. Bebora – Court AssistantMr. Sirima – For the StateSIGNED BY/FOR: