https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11049

Republic v Muchene (Criminal Case E001 of 2022) [2026] KEHC 11049 (KLR) (21 July 2026) (Judgment) Neutral citation: [2026] KEHC 11049 (KLR) Republic of Kenya In the High Court at Nanyuki Criminal Case E001 of 2022 AK Ndung'u, J July 21, 2026 Between Republic Prosecution and Nancy Wambui Muchene Accused Judgment 1.The Accused, Nancy Wambui Muchene is charged with the offence of murder contrary to Section 203 as read with Section 204 of the Penal Code. The particulars are that on the 2nd day of January 2022 at Gatei Sub-Location, Kieni East Sub-County within Nyeri County murdered Esther Nyaguthii Kago. 2.The accused pleaded not guilty to the charge and the matter proceeded to a full trial. During the hearing, the prosecution adduced oral and documentary evidence. The evidence of the respective witnesses is set out hereunder: 3.PW1 Agnes Kirigo Wagura said that she lived at Gatei. She is a housewife. On 2/1/2022 at 11.00 am she was at her boyfriend’s home at Gatei. That she was alone and the house was in a compound. There was a house of mother in law Esther Nyaguthii Kago and grandmother Elizabeth Wanjiku mother of Esther Nyaguthii. There was also a house of an uncle of her boyfriend Anthony Mwangi. She was alone in the house. At 11.00 she heard Anthony’s mother Esther Nyaguthii screaming. The screams were within the compound. She came out and found Esther lying on the ground and a lady was hitting her with a metal bar. It was during the day. She identified the metal rod (PMFI-PI). She screamed. 4.The attacker approached her. She run off. She pursued her but gave up. She went to a quarry where she asked people to come and see what was happening. People came to the compound. They found Esther Nyaguthii lying on the ground. Assistant Chief was called. She was taken to hospital as she was injured when she ran off and fell. She was pregnant. From hospital she went to her mother’s home. Her mother went to Gatei to check what happened. She returned and confirmed that she had died. On 11/1/22, she went to Naromoru Police Station to attend an identification parade. There were 10 women in a line. She picked the one she had seen attacking Esther. She later learnt that the said attacker was a sister to Esther. She identified the accused as the person she saw attacking Esther. She is Nancy Wambui. 5.PW2 was Margaret Njeri who said she was a house wife and lived at Limuru. She recalled on 7/1/2022 at 5.00pm she went to Nyeri PGH Hospital with other family members where she identified the body of Esther Nyaguthii for purposes of post mortem. The body had deep cuts on both sides of the head and hand. A post mortem was conducted and a report made. (MFI-P2). Esther was living at Gatei. She had built at the farm of Elizabeth Wanjiku their mother. There was the house of Esther, Elizabeth, Samuel Mathenge and a son of deceased Anthony Mwangi. Her mother was living with the Accused, Nancy Wambui. She identified Nancy Wambui as she was her sister. 6.PW3 was Elizabeth Wanjiku Kago who lived at Gatei. She said that she was a farmer. That on 2/1/2022 at 10.00 am she was at church. She had left Nancy Wambui, the accused at her home. She was living with her that time. Her house has 2 bedrooms and a sitting room. Each of them were sleeping in separate rooms. That she was called through a phone call while at church by one Mwangi, a grandson who asked if she was at home. She told him she was in church. He told her that Mama Kago (the deceased) who was her daughter had been hit. The deceased had built in her compound as she was a single mother. She went home and found many people. Esther was lying down. The Chief asked her whom she was living with in her house. She was asked to check Nancy in the house but she was not there. 7.She added that the police came to the scene. They checked Esther and asked for a blanket. They took her to the car. They did a search in the room where Nancy was sleeping. They recovered a metal rod hidden under a seat. She recognized the rod. She told them she used to dig holes with it. She identified the rod in court. Esther the deceased used to live in her land in her own house. She recorded a statement with the police and a further one. She had lived with Nancy for 2 years. Nancy used to be moody. She hadn’t seen her take her medicine. Her son had died and she was living with her and giving her food. She hadn’t seen any fight between the deceased and the accused. The accused did not return home that day. She went back to Kiambu to her husband. She identified the accused as her daughter Nancy Wambui. 8.PW4 was Dr. John Muthuri a Pathologist currently at Nyeri CountyReferral Hospital. He stated that he has been there for the last 7 years. That prior he undertook a masters in human pathology at the UON and completed in 2016. He had a post mortem report that he authored of Esther Nyaguthii Kago having performed the autopsy on 7/1/22 at Nyeri County Referral hospital. The deceased was identified by a sister and family friend. The deceased was 52 years and allegedly assaulted by a known person to her on 2/1/22 around 11.00 am at Gatei village where it was alleged she was hit with a blunt object and died on the spot. She had a yellow blood-stained dress. The body was well preserved. Externally on the head and back there were lacerations on the head and on the back a contusion. Internally on the head, there was bilateral frontal and parietal haematorma and multiple skull fractures and extensive hemorrhage. There was contusions of muscles and spine fractures in lumbers 4 and 5. Based on the findings, cause of death was head injury due to blunt force trauma. Upon request of the Investigating Officer he provided a dried blood sample to aid in investigations. He signed the document and he produced the same as exhibit (Pexh 2). 9.PW5 was No. 238055 IP Josephat Kinyua of Narumoru Police Station as Deputy Commander. He stated that on 11/1/2022 he was approached by Sergeant Hussein who requested him to carry out an identification parade. There was one suspect and 1 witness. It was around 3 pm. He proceeded to the police cells where the suspect (Accused) was and informed her of the intention to do a parade. He sought parade members for the neighbourhood, 9 in number. The accused was taken out of the cells and joined the parade members. He asked her to pick a position. She chose between No. 7 and 8. He asked the witness who was outside, Agnes Kirigu and she picked out the Accused by touching. The accused appended her signature on the form. She had no objection in the process. The proceedings took 10 minutes. He produced the identification parade form as an Exhibit. 10.PW6 was Anthony Mwangi Nyaguthii of Gatei in Kieni East. He told the Court that on 2/1/2022 he was at Nyahururu. That at 11.30 am he was called by his wife and told that the Accused had hit his mother with a metal bar. That the accused had also attempted to hit his wife. He travelled home and arrived at 6.00 pm. He found the body of his mother had been removed. He knew the accused as sister to his mother. 11.PW7 was Joseph Kago Nyaguthii. He stated that he lives at Ngaringiro and does mining. That on 25/12/21 he had spoken to his mother who told him that the daughter of the Accused had gone home and they had prayed. The Accused had declined greetings from PW7’s mother. 12.PW8 is Margaret Wahu Maina who is a Government Analyst stationed at Government Chemist Nairobi. She stated that he has worked for 12 years. She had a report prepared upon receiving items from PC Nyamweya for examination. The report confirmed that the metal rod submitted for profiling contained the blood of the deceased herein. She produced the report and the Exhibit Memo as exhibits. 13.PW9 was No. 70563 Sergeant Hussein Liga currently station at Sololo DCI Office. At the material time he was at Narumoru DCIO’s Office. He recalled that on 2/1/2022 he received a call from his boss Madam Gaceri and called to the Station. He met her there and he was briefed on a case of murder. He was asked to investigate. Together with other Police Officers they went to scene. They found deceased and villagers had gathered. They heard people say that she was hit with a metal rod by her sister. They searched for the murder weapon. He recovered the rod in the accused’s room under a seat. He kept it as an exhibit. Scene of crime Officers arrived. They proceeded the scene and deceased’s body taken away for post mortem. The accused was living with the mother in the same house but different bedroom. Photographs were taken. On 6/1/2022, he proceeded to Kiambu County acting on information that accused had returned back to Kiambu. They arrested the accused with help of informers. They took her to Narumoru Police Station. The scene of crime was within Gatei village in Chaka. The body had injuries on the head. They got an order to hold the accused for 7 days. He attended post mortem and he requested for some blood from the deceased body for analysis. He prepared an exhibit memo and forwarded the blood sample to Government Chemist Nairobi. He received a report back and forwarded same to ODPP. He identified photographs of the body of deceased. There was also photograph of murder weapon. He identified the recovered rod in court. He also identified the accused as the person he arrested. 14.PW10 was No. 61751 Senior Seargeant David Chege Ngonyo of DCI Nyeri Region and performing Crime Scene duties as a Forensic Expert. He was gazette vide Notice No. 10884 of 2006. He recalled on 2/1/22 at around 1530hrs he was called by sergeant Hussein of DCI Naromoru who informed him that he needed crime scene services since there was a scene murder to be documented. He was out on other duties. He sent PC Eric Ojwang who was on job training to proceed and process the scene. PC Ojwang brought the SD Card which he was using in the camera and he processed it making 16 photographs which he did since PC Ojwang was not gazetted. The 16 photographs showed the scene, the body which had injuries and murder weapon and general area. He signed the certificate and it was presented before Court as PExhibit 6a. He produced the photographs as Exhibits. 15.Upon being placed on her defence, the Accused elected to give sworn evidence and did not call any other witness. She told the court that in 2019 she was living in Kiambu. Her child Martin Njoroge died. She moved to Nyeri to live with her mother. She was living with her mother alone. On 2/1/2022, she did not recall what transpired. She was arrested by police at Kiambu. They told her she had killed her sister. She had been taken to hospital. When she was arrested she was taken to Mathare for 5 months. On cross examination she stated that she was arrested in Kiambu. That she had 5 children and she was married for 13 years. That she had mental problems and was taken to Nyeri hospital by her mother where she was transferred to Mathare. That on 2.1.22 she was in Nyeri at her mother’s and that they were living together the two of them. That she did not recall who Esther Nyaguthii was and that she forgets the names of her sisters and brothers. That she did not know who Agnes Wagura was. She said her husband’s name was Patrick. She did not know Joseph. She said that she killed someone on 2/1/22 and was arrested in Kiambu. She could not recall who took her to Kiambu. She could not recall police arresting her. That she was taken to police station where she could not remember. She was not aware whether identification parade was done. 16.That was the totality of the evidence. 17.In submission, counsel for the Accused stated that at the material time the Accused appeared to suffer from severe depression that led to her lapse of memory. There was therefore no malice aforethought. That she remembered going to her husband’s home but when police went to arrest her she did not know why. Further, that there were no arguments with the deceased. 18.Counsel submits that the Accused was insane at the time of committing the offence as confirmed by witnesses that she was exhibiting unusual behavior when living with her mother and the mother had taken her to Nyeri hospital. That the Accused would go for many days without bathing. Counsel relies on Section 12 of the Penal Code stating that the Accused due to her state was not criminally responsible. Reliance was placed on the case of Wakesho V Republic [2021]KECA 223 (KLR). 19.On its part, the prosecution maintains that the charge is proved beyond reasonable doubt. All the ingredients are proved. 20.On the defence of insanity raised, Counsel submits that under Section 11 of the Penal Code, every person is presumed to be of sound mind and capable of forming the necessary intent unless the contrary is proved. The only exception is insanity under Section 12. It is urged that the Accused has not raised the defence of insanity formally and neither is medical evidence presented. Reliance is placed on the decisions in R v Andrew Mweche Omwenga [2009] eKLR, R v Cheya and Another [1973] E.A. 500 and R v Ochieng [1985] KLR 252. 19.The offence of murder is created under Section 203 of the Penal Code. The prosecution bears the burden of proving beyond reasonable doubt that: firstly, the deceased died; secondly, that the death was caused by an unlawful act or omission of the accused; and thirdly, that in causing the death, the accused acted with malice aforethought as defined under Section 206 of the Penal Code. The burden of proof throughout remains with the prosecution and never shifts save where a statutory exception applies. 20.The applicable threshold was explained in the leading case of Woolmington v Republic 1935 AC 462, as follows:“Throughout the web of the English Criminal Law one golden thread is always to be seen, that it is the duty of the prosecution to prove the prisoner’s guilt subject to what I have already said as to the defence of insanity and subject also to any statutory exception. If at the end of and on the whole of the case, there is a reasonable doubt, created by the evidence given either by the prosecution or the prisoner, as to whether [the offence was committed by him], the prosecution has not made out the case and the prisoner is entitled to an acquittal. No matter what the charge or where the trial, the principle that the prosecution must prove the guilt of the prisoner is part of the common law of England and no attempt to whittle it down can be entertained.’’ 19.For the Court to make a finding that an accused person committed the offence of murder, the Prosecution must therefore establish the following elements;(a)death of the deceased,(b)proof that the accused person committed the unlawful act which resulted in the death of the deceased: and,(c)malice aforethought. 19.There is no dispute regarding the death of the deceased, Esther Nyaguthii Kago. The evidence of PW2 identified the body for purposes of post-mortem while PW4, Dr. John Muthuri, conducted the post-mortem examination and formed the opinion that the deceased died from severe head injuries occasioned by blunt force trauma. His findings disclosed multiple skull fractures, bilateral frontal and parietal haematomas and extensive intracranial haemorrhage. The medical evidence was neither challenged nor contradicted. I therefore find that the fact and cause of death were proved beyond any reasonable doubt. 20.The next issue is whether it was the accused who inflicted the fatal injuries. In that regard, the prosecution evidence is direct, cogent and mutually reinforcing. 21.PW1, Agnes Kirigo Wagura, was an eye witness to the incident. She testified that upon hearing screams from within the compound, she rushed outside and found the deceased lying on the ground while the accused repeatedly struck her using a metal rod. The incident occurred during broad daylight and there was no suggestion that the witness's view was obstructed. The witness herself was pursued by the attacker and escaped after running away. Her evidence remained firm throughout cross-examination. 22.The reliability of PW1's identification is further strengthened by the identification parade conducted by PW5. The parade was conducted in accordance with the Force Standing Orders. The accused freely chose her position in the parade, raised no objection to the procedure and signed the parade forms. PW1 unhesitatingly picked out the accused by touching her. There is therefore no basis upon which the identification can be faulted. 23.The prosecution evidence is further corroborated by compelling circumstantial evidence. PW3, the mother of both the deceased and the accused, testified that immediately after the attack the accused had disappeared from the house. Upon searching the room occupied exclusively by the accused, police recovered the metal rod hidden beneath a seat. PW3 positively identified the rod as one ordinarily kept in the homestead and used for digging holes. 24.Scientific evidence placed the matter beyond doubt. PW8, the Government Analyst, established through DNA profiling that the blood stains recovered from the metal rod matched the blood sample obtained from the deceased during the post-mortem. This scientific evidence conclusively linked the recovered weapon with the fatal assault. 25.PW9, the investigating officer, confirmed recovering the rod from the accused's bedroom and further testified that after the attack the accused fled from the scene and was eventually traced and arrested several days later in Kiambu where she had travelled to her husband's residence. The accused herself admitted that she was arrested in Kiambu. 19.The fact of wounding and death of the deceased is not contested. Considering the direct eye witness account together with the forensic evidence, recovery of the murder weapon and the accused's subsequent conduct, I find that the prosecution proved beyond reasonable doubt that it was the accused who unlawfully inflicted the fatal injuries upon the deceased. 28.Learned counsel for the accused did not seriously contest that the accused caused the death of the deceased. Rather, the defence advanced was that the accused could not remember what transpired and therefore lacked malice aforethought. Closely related to that argument was the contention that she suffered from mental illness and was therefore protected by Section 12 of the Penal Code. 29.I have carefully considered those submissions. The mere fact that an accused person states that he or she cannot remember committing an offence does not, without more, negate criminal responsibility or disprove malice aforethought. Memory loss after the event is entirely different from legal insanity at the time the act was committed. 30.Malice aforethought is proved by inference from the surrounding circumstances and particularly from the nature of the weapon used, the manner in which it was used, the part of the body targeted and the conduct of the offender before, during and after the attack. 31.The evidence before Court demonstrates that the accused repeatedly struck the deceased with a heavy metal rod. The blows were directed at the head, a particularly vulnerable part of the human body. The post-mortem disclosed multiple skull fractures and extensive intracranial haemorrhage. The violence employed was excessive and deliberate. A person who repeatedly strikes another on the head with a heavy metal object must be taken to know that death or grievous harm is the probable consequence of such conduct. The circumstances therefore satisfy the requirements of Section 206(a) and (b) of the Penal Code. 32.Even more telling is the conduct of the accused immediately after the assault. The evidence establishes that she hid the murder weapon beneath a seat inside her bedroom before fleeing the scene. She thereafter travelled from Nyeri to Kiambu where she sought refuge at her husband's residence until her arrest several days later. 33.Those actions are inconsistent with the conduct of a person incapable of understanding the nature and consequences of her acts. Concealing the weapon demonstrates a conscious appreciation that it constituted incriminating evidence. Leaving the scene immediately after the attack and travelling a considerable distance to another county equally demonstrates an appreciation of wrongdoing and an intention to avoid detection and arrest. Such deliberate and calculated conduct is wholly inconsistent with the assertion that the accused was incapable of appreciating the nature or wrongfulness of her actions. 34.The Court therefore rejects the argument that the absence of recollection by the accused displaced the overwhelming evidence establishing malice aforethought. Defence of insanity 35.The accused also invoked Section 12 of the Penal Code. That provision exempts from criminal responsibility a person who, at the time of doing the act, is through disease affecting the mind incapable of understanding what he or she is doing, or of knowing that the act or omission is wrong. 36.The starting point is Section 11 of the Penal Code which provides that every person is presumed to be of sound mind and to have been of sound mind at any time which comes in question until the contrary is proved. The presumption is therefore one of sanity. 37.The East African Court of Appeal in R v Cheya & Another [1973] EA 500 held that the law presumes every person to be sane and that the burden rests upon the accused to establish insanity on a balance of probabilities. The Court further observed that although the burden is lighter than that resting upon the prosecution, there must nevertheless be credible evidence showing that at the time of the commission of the offence the accused was suffering from a disease of the mind within the meaning of the law. 38.Likewise, in R v Ochieng [1985] KLR 252, the High Court emphasized that the relevant inquiry is not whether the accused had previously suffered mental illness or subsequently received treatment, but whether at the very time of committing the unlawful act he was incapable of understanding the nature of his actions or of appreciating that what he was doing was wrong. 39.Similarly, in R v Andrew Mweche Omwenga [2009] eKLR, the Court held that allegations of mental illness unsupported by medical or other credible evidence are insufficient to rebut the statutory presumption of sanity. The Court reiterated that the crucial issue is the accused's mental capacity at the time of the offence. 40.The Court of Appeal in Mariam Wanjiku Karanja & Another v Republic [1998] eKLR held that the crucial consideration is the mental state of the accused at the very time the offence was committed. Similarly, in Wakesho v Republic [2021] KECA 223 (KLR), the Court emphasized that it is not sufficient merely to establish the existence of mental illness; it must be shown that the illness deprived the accused of the capacity to understand the nature of his act or to know that it was wrong at the material time. 41.Applying those principles to the present case, I find that the defence has failed to discharge the burden placed upon it by Section 11 as read together with Section 12 of the Penal Code. 42.First, no medical evidence whatsoever was tendered to demonstrate that the accused suffered from a disease of the mind capable of bringing her within Section 12. Although PW3 mentioned that the accused sometimes appeared moody and that she had once been taken to hospital, no treatment records, psychiatric reports or testimony from any medical practitioner were produced before Court. Indeed, there is no evidence showing what condition, if any, she suffered from or whether such condition affected her cognitive ability on the material day. 43.Secondly, the conduct of the accused immediately before and after the offence strongly points to a conscious and rational appreciation of her actions. After assaulting the deceased, she concealed the murder weapon beneath a seat in her bedroom, left the homestead, travelled from Nyeri to Kiambu and remained at her husband's residence until she was traced and arrested by police. These deliberate acts required planning, judgment and an appreciation of the consequences of her conduct. 44.Thirdly, even during the identification parade, there is no evidence that the accused displayed confusion or inability to understand the proceedings. PW5 testified that she understood the procedure, selected her preferred position in the parade, raised no complaint and voluntarily signed the parade forms. Such conduct further demonstrates orientation and comprehension. 45.Although the accused claimed during her testimony that she could not remember many matters, including even the identities of some of her relatives, that assertion alone cannot establish legal insanity. Forgetfulness, depression or subsequent lapse of memory does not satisfy the strict legal threshold under Section 12 of the Penal Code. The law requires proof that, at the time of the act, the accused was incapable of understanding what she was doing or of knowing that it was wrong. No such evidence was presented. 46.I therefore find that the statutory presumption of sanity has not been displaced. The defence of insanity fails. 47.Having considered the evidence in its entirety, I am satisfied that the prosecution proved beyond reasonable doubt that the accused intentionally and unlawfully assaulted the deceased using a heavy metal rod, inflicting repeated blows on the head which caused fatal injuries. The nature of the attack, the weapon employed, the vulnerable part of the body targeted, the concealment of the weapon and the accused's flight from the scene irresistibly establish malice aforethought within the meaning of Section 206 of the Penal Code. The defence based on lack of memory and insanity is unsupported by evidence and is accordingly rejected. I therefore find that the prosecution has proved all the essential ingredients of the offence of murder beyond reasonable doubt. 48.I find the Accused guilty as charged and convict her for the offence of murder as charged. DATED SIGNED AND DELIVERED VIRTUALLY THIS 21ST DAY OF JULY 2026A.K. NDUNG’UJUDGE