https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8970

 **REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT NYANDARUA** **CRIMINAL CASE NO. E016 OF 2025** **REPUBLIC...........................................................................................................PROSECUTOR** **VERSUS** **SAMUEL KAHURO KIMANI…………………………………………...…………ACCUSED** **JUDGMENT** 1. Samuel Kahuro Kimani is 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 2nd day of October 2025, at Kianjogu in Wanjohi Sub-County of Nyandarua County, Kiiru Kariuki. 3. The prosecution contended that the accused and the deceased were strangers. The accused, who appeared drunk, pursued the deceased and fatally stabbed him. 4. In his defence, the accused claimed that he had consumed some alcohol on that day. While returning home, he was assaulted by two individuals, which caused him to lose consciousness. When he regained consciousness, he found himself at the police station. 5. Whether the accused inflicted the fatal injuries on the deceased; 6. Whether the accused was mentally stable or not; and 7. Whether the offence of murder was established against the accused. 8. Kenneth Kiiru Gachora (PW1) was with the deceased, his grandfather, and others. Around 8 p.m., they were heading home. He testified that they passed the accused, who was standing nearby, but the accused soon followed them. When Kenneth caught up, the accused began bothering the deceased and attempted to stab him. Stanley intervened and held the accused back, but he managed to break free and subsequently stabbed the deceased. 9. The evidence of John Macharia (PW3) is that the accused attempted to stab him, but when he fell down, he stabbed his father, the deceased. The deceased fell down, and the accused also lay down. 10. Stanley Ngure Kagwe (PW2) and Peter Chege Kariuki (PW4) arrived at the scene after the act and found both the accused and the deceased were lying down. This is the status CPL. Anthony Gitonga (PW5) was found upon arrival at the scene. His evidence is that they prevailed upon members of the public who wanted to kill the accused. 11. The post-mortem report indicated that the cause of death was exsanguination(severe loss of blood) following stabbing of the left ventricle. 12. Samuel Kahuro Kimani, the accused, denied involvement in the offence. His evidence is that he was attacked by unknown people. 13. 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. The witnesses who were with the deceased on the fateful evening described the accused as a stranger to the deceased. When he was examined by a psychiatrist on the 8th day of October 2025, this is what was observed: ***On appearance, disheveled appearance, trauma to both eyes, mostly the right, bruises on his face, has a bandage on his right upper limb.*** ***He laughs inappropriately when he says nilikuwa natenda mambo mabaya. Mood euthymic. Affect his mood incongruent. speech is coherent. Denies any perceptual disturbance, no homicidal or suicidal ideation. disoriented in month. Cannot remember his year of birth. Thought process normal.*** ***Insight lacking.*** ***Impression: patient is not of sound mind to stand trial for now. Still* confused.** She 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 13th January 2026, bout was still under management for convulsive disorder. 1. 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.*** 1. Based on the evidence, the accused was not mentally sound at the time he committed the offence. He was therefore not able to form the essential intent for the crime. The accused lacked the required mens rea. The Court of Appeal's decision in **Wakesho v Republic** (supra) is the correct approach in such cases. Therefore, I acquit him of murder and order his release unless he is lawfully detained for other reasons. **Delivered and signed at Nyandarua, this 25th day of June 2026** **KIARIE WAWERU KIARIE** **JUDGE**