https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10309

Republic v Muriu (Criminal Case 15 of 2019) [2026] KEHC 10309 (KLR) (9 July 2026) (Judgment) Neutral citation: [2026] KEHC 10309 (KLR) Republic of Kenya In the High Court at Kerugoya Criminal Case 15 of 2019 EM Muriithi, J July 9, 2026 Between Republic Prosecution and Stephen Waweru Muriu Accused Judgment 1.On 17/12/2019, the accused was arraigned in court to plead to the offence of murder contrary to section 203 as read with section 204 of the Penal Code. The particulars of the offence were that on 15/7/2019 at Thumaita B. Village, Kithumbu Sub-Location, Mwerua Location within Kirinyaga County, he unlawfully murdered Susan Wanjiru Rukenya. 2.After he denied the charge, the prosecution called 5 witnesses to prove its case. Evidence 3.PW1 Elisiba Wanjiku Rukenya, testified that, “I am from Mwirua Location. I am a farmer. On 13th July, 2019 Susan Wanjiru Rukenya came home drunk. She said her stomach was hurting. I asked her what had happened. She told me she had been hit by Stephen Muriu. She was not too drunk - she appeared to me to be somewhat drunk. She was holding her stomach and said Stephen Muriu had hit her. I know Stephen Muriu. My sister is married in the family of Stephen Muriu. I know him. He is the one in the dock. Susan Wanjiru is my daughter the second born following my son. She came holding her stomach and said she had been hit. I told her to go to the police station to report. She said she can’t make it. This was at about noon. So I went to Stephen’s home. I called out for him. He was not home. So I went to Kagio Police Station to report that my daughter came back being injured. They told me to bring her on a boda boda. When I went back home I found she was already dead. Then I went to the Area in Charge - village Elder we call him Wanjohi Muthumbi. She died lying under an avocado tree. Police came and removed her from there at about 9.00 p.m. They took her to Kibungi funeral Home. I knew Stephen I don’t know whether she was his friend. I wrote my statement at [.... Not sure].” 4.On cross examination, she stated that, “Susan Wanjohi was aged in her 40’s she came home at about 10.00 p.m. She had been married and they separated. She was living with me. When I opened the door she said she had been hit. I wrote my statement with the police. I said she told me she was hit by Stephen. I did not say she had been hit by Stephen Mariu. I was afraid so when I said Stephen I may have missed his other names. Susan had taken a drink at daytime. She had left me at home so I can’t tell when she started drinking. I did not go to the club where she had been drinking. I was not with her and Stephen when they were drinking. Julia Wambui is my daughter. They had been drinking together. I don't know if Stephen and Susan left the club at 4 p.m. I don’t know when or if they parted. Yes, I went to akina Stephen’s on Sunday the following day. I went to Stephen and did not find. Susan was still alive when I went to police station. She refused to come with me. I don’t know what happened between 4.00 p.m. to 10 p.m. I don’t know whether Stephen and Susan were lovers. I did not see Stephen hit Susan. There is no other Stephen I know only this one.” 5.In re-examination, she stated that, “Susan came home at 10.00 p.m. I told the police my story and they wrote what I said. I told him Stephen his father’s name. I was not there when Stephen was beating Susan. She told me she was hit by Stephen.” 6.PW2 Ann Njoki Julius, testified that, “I come from Mwarwa village. I am a casual labourer. On 13th July, 2019 I spent the day with Stephen Muriu and Susan Wanjohi. We were together from morning at 11.00 a.m. Stephen started buying beer for her at that time. They then left and went home. Then they came back to the club at about 2.00 p.m. The club is called kwa Wamunga. They drunk a bit then went to Stephen’s at about 4.00 p.m. I remained at the club. Before they reached Stephen’s I was called by another lady and told Stephen and Susan were fighting. I called Susan’s sister Julia Wambui and we went towards Stephen’s home. Near Stephen’s gate we found them and found there was no fight. They were just arguing and agreeing to enter Stephen’s place. So Julia and I went back to the club. On 14th July 2019 that is the next day, or on 15th or 16th July, Julia told me that we should go and see Susan as she was sick. We went and took Milk she said she can’t eat. Later I went to wake Susan and found that she had already died. I wrote my statement at Kagio Police Station.” 7.On cross examination, she stated that, “We were at the club. Susan call me and Stephen and Julia. We started drinking at 9.00 a.m. They were the drinks for measuring. It was at a wines and spirit bar/club. I know Stephen. He had a wife and she left. Stephen then took Susan as his friend. Stephen and Susan left the club at 4 p.m. they were drunk. They were staggering. We went with Juliana when we heard they were fighting. This was at Thumaita. They were lovers I did not see Stephen hit Susan. They were staggering. Susan was not hurt everywhere. Shown her statement. Susan was also buying drinks not only Stephen was buying. I was there not what I was being told. When I went to her home I found Susan had passed on. Susan died near the Avocado tree I found her lying there. I don’t know what caused her to die.” 8.In re-examination, she stated that, “Stephen started buying drinks for Susan at the club. I heard Steve and Susan were arguing when we got there we found they were arguing and decided to leave them alone as they were lovers. I came to hear about Susan and that I should visit her about 3 days later. I found her lying under an avocado tree.” 9.PW3 Dr. Ndirangu Karomo a Medical Officer at ACK Mt. Kenya Hospital Kerugoya, produced the post mortem report dated 23/7/2019 as exhibit 1. On examining the body, fluid was oozing from the mouth and nostrils some of which had dried on the face, there were fractured ribs on left hen thorax and Nos. 6 and 7 with an overlying haematoma [bleeding over them], there was abdominal fluid that was foul smelling with particles of fatal matter, fluid was about 2.5 fluid outside the intestinal tract cavity and the small intestines were perforated. The cause of death was multiple organ failure caused by septic shock following perforation of the intestines after an assault. 10.On cross examination, he stated that, “I signed post mortem on 23rd July, 2019. Death occurred on 15th July, 2019. Body was well preserved by refrigeration. There was no rigor Mortis. There was 2.5 litre of fluid. It came from the perforation in the small intestine and also from covering of organs of the abdomen called peritonium. When peritonium is covered by feacal matter it produce fluid. Perforation of small intestines was due to trauma to abdomen. After peritonium feacal matter leaks into abdominal cavity that blocks peritoneum. Septic shock is treatable. There was no external bruising, but when we opened the body we found fractured ribs and perforated intestines. If deceased had been taken to hospital there was a high likelihood of recovery. It is not possible to tell what weapon was used on deceased. It is not possible to say there was a weapon. A fist or kick could deal the injuries. Deceased was still dressed so there was no external injury.” 11.PW4 Julia Wambui Rukenya, testified that, “I come from Thumaita. I work as casual labourer. On 13th July, 2019 I met with another person who informed me that my sister was being beaten by Stephen Warui Murimi. We went to the place at Katheru near Gilbert’s home. We went with Ann Njoki who had informed me. I found them seated and struggling with each other spying at each other. I told them to go home will I left them. I found them seated on the ground. On 14th July, 2019, my mother came and asked me to go and take care for my sister. I made tea. She told me she had pain on the head and on the right side of her ribs. She told me that she had been fighting with her friend along the road. She said it was Stephen Warui. On 15th July, 2019 at about 5.00 p.m. I found her lying outside our home. She was dead. I screamed and people came. Police officers came and the body was taken to the mortuary. Stephen Warui was a friend of Susan. They did not live together. They were lovers.” 12.On cross examination, she stated that, “I live at Thumaita. My home is at Thumaita. I live at a rented house. From home to my rented house is about 2 kilometres. On 13th July, 2019 I was told that my sister was being beaten. It was 11.00 a.m. - 1.00 p.m. during the day. I was informed by Ann Njoki. I know her for about 3 years. [Statement Peninah Njoki] I recorded that she was Ann Njoki. I know the accused since he was born. [Statement does not indicate City is the person who beat deceased. It was his nickname. His name is Stephen Warui. They were lovers. They were drunkards. Both were drunkards. On this day they were drunk. I found them near the road heading to Muriu’s house. I did not find them fighting. I found her seated only crying. I left them and went back to the club I used to drink. On 14th July, 2019 my mother came to me and asked me to go home. We went back home. It was about 10.00. We found my sister. She told me that she was injured on the head and ribs. I made tea. [Statement that witness went there]. Do you remember already what happened? My mother came and asked me to go and make tea for my sister. [Statement that witness went back after seeing the sister]. It is not true. I made tea and my mother told me that Elizabeth came back home late at night previous day. I screamed when I found my sister had died. I was at our home when I screamed. [Statement is different] what I have said before the court is true. My mother went to seek held to take my sister to hospital on 15th July, 2019. My mother came and found my sister had already died. She died on 15th July, 2019 and she had been injured on 13th July, 2019.” 13.In re-examination, she stated that, “The statement was recorded as I told them what happened. What I told the court now is what I told the police officer. On 13th July, 2019 I was drunk. On 14th July when mother told me to make tea for my sister I was not drunk. My sister told me that it was Stephen Muriu who had beaten.” 14.PW5 Sergeant Joseph Ngila Ndambuki, currently stationed at JKIA DCI Office testified that, “I was at Kirinyaga West for 6 years from 2016 - 2022. On 15th July, 2019 at the office at Sagana when I got a telephone call from OCS Kagio who informed me that there was sudden death case reported from the Thumaita Area. I went to Kagio and met the Driver, OCS and we went to the scene of crime. On arrival we found the body of girl who were informed was Susan Wanjiru Rukenya. We investigated by looking at her body from injuries but she had no injuries on her body. We preserved the scene with fence of crime preserved and the body was taken to Kibungu Mortuary awaiting post mortem. On 16th July, 2019 I went to Kagio where I met with the family of the deceased. One of them mother Elisabita Wanjiru Rukenya she informed me that her daughter died on 13th July, 2019 got home while drunk and she told the mother that she had been with the accused Stephen Waweru Muriu and that Waweru had beaten her and kicked her on the loft side of her stomach and she was in great pain. I recorded the statement from the mother, the deceased’s sister Julia Wambui Rukenya, Wambui said that she was informed by her friends on 13th July, 2019 Ann Njoki Julius (PW2) that she had seen her sister being beaten by the accused and when she took her friend they went to the scene and found her sister struggling with Waweru as the deceased holding her underground by the hand. On 23rd July, 2019 I went to Kibungi Mortuary when we met with the doctor for post mortem. Post mortem was done and doctor confirmed that the deceased had been hit on her left side and she had broken her Nos. 6 and 7 ribs. On 15th July, 2019 Waweru heard that people were asking for him to lynch him he went to police station at Kagio and surrendered. He was arrested and locked up in cells. On 17th July, 2019 we brought the accused to Baricho Magistrate’s court for application to hold him pending completion of investigations. On 31st July, 2019 we charged him before the court. The accused Stephen Waweru was the accused [pointing at the accused].” 15.On cross examination, he stated that, “Incident happened on 13th July, 2019 at 5.00 p.m. Accused beat the deceased. Any eye witness? Yes, Julia and her friend found him struggling and accused beating the deceased. I am the one who recorded the statement of Elishaba sister when they recorded the statement. The deceased and accused had been drinking. They were drunk. I went to the scene. [Any weapon recovered?]. No weapon was recovered. The body did not have any physical injuries. The accused also did not have any injuries on the body. The deceased told the mother that she beaten by the accused. [Elisha’s statement indicates that deceased was beaten by one Stephen] yes, she gave the name Stephen only. [Julia’s statement that the deceased had been beaten by her friend by name “siti” the statement indicates it was an alias” the statement shows the name “siti” in brackets (alias)]. The deceased was a girl friend of the accused. Nobody knows why they were fighting. They had come from a club called pub -Thumaita. I have not indicated the name of the pub. I did not go to the pub. She was beaten on her body. I was informed by eye witnesses who went to the scene of fighting. The post mortem indicates that the accused had 2 broken ribs. On 13th July, 2019 she was at home on 14th July, 2019 the mother tried to get funds to take her to hospital she did record showed on 15th July, 2019 two days later died.” 16.In re-examination, he stated that, “Elizabeth Wanjiru Rukenya (pw1) is the deceased’s mother. Julia (pw4) is sister to the deceased. Ann Njoki (pw2) friend to Pw4 indicated. Pw1 got information from the deceased that she had been beaten by accused and she showed her where she had been beaten. Accused surrendered when he heard that people wanted to lynch him. I did due diligence to investigate. The witnesses are not drunk. I went for the post mortem. The cause of death was investigated that injury where her 2 ribs were broken. On seeing the deceased one could not establish the internal injuries. PW4 Julius Wambui Rukenya is the only person who used the name “siti” I registered if at Alias” it is the name by which the accused was known by the deceased’s sister and friend.” 17.DW1 Stephen Waweru Murui, the accused herein gave sworn testimony that, “I come from Thumaita B, Kagio. I have been charged with Murder. Susan Wanjiku is deceased. On 13th July, 2019 at 1.00 p.m. I was going to a wine and spirit pub at Thumaita. When I was going there at 2.00 p.m. Opening time on Saturday I started drinking. Wambui and Susan (deceased) came and found me. Later their mother Elizabeth came and joined. They asked me to buy them beer. I bought beer for Wambui and Susan. At about 3.30 p.m. I received a call from another person Gathunu. Who I asked to sell to me posts for construction of a kitchen. He asked me to go for the posts. I excused myself and left to pick the items. When I went out, Susan came after me and asked me to buy her a cigarette. As I went across the road with Susan to buy her a cigarette we met with a boda boda with passengers. They stopped and started beating us for crossing the road while the boda was passing and we were drunk. They beat us and they left. I got Susan her cigarette and she went back to the club where we had gone after the club opened at 2.00 p.m. Initially I had been drinking at the wines and spirit. After Susan went back to the club. I also left by a boda rider and went towards Kagio town. The boda boda rider and passengers beat us on the road and they left. I did not see where Susan had been hit. I was hit on the road. It was Baricho Kagio Road. [It is alleged that you beat Susan with piece timber]. It is not true. I left her and I went to Kagio I was not involved in her death.” 18.On cross examination, he stated that, “I was with Susan. I know Susan as a friend. She was a neighbour. She was not my girlfriend. We were with her at the bar. Her sister is Wambui. We left the club at 4.00 p.m. I left alone and Susan followed. Wambui is the sister. The mother is Elizabeth I saw Wambui and the mother testifying in court. I had drunk 3 beers when I left. I was taking local beers which cost 100/= called Santa Ice. I was drunk I was a passenger on the boda boda. “siti” is short of my name Stephen. [Deceased’s mother said that she was not with you?] Yes, we were in the same club but were not sitting together. You beat the deceased? I did not beat the deceased. I knew the deceased as a neighbour since childhood we met every day. The deceased had children. I do not know how many children. [Accused spoke that she had been beaten?] I heard witnesses say so.” Submissions 19.The accused urged the court to note that he, the deceased, PW1, PW2 and PW4 were all in a drunken stupor, a state that causes temporary insanity, hence not credible witnesses at the time or subsequently after, and cited R v Dan Munene (2022)eKLR. He cited Republic v Yiende [1990] KEHC (85) KLR on what constitutes a dying declaration. 20.The Respondent urged that the evidence tendered placed the accused at the scene and that the death of the deceased was due to his wrongful act. Analysis and Determination 21.The formulation by Etyang, J. in R. v Nyambura & 4 Others (2001) KLR 355, and approved by the Court of Appeal in Antony Ndegwa Ngari v R [2014] eKLR as to the ingredients of the offence of murder is follows:“There are three ingredients of murder which the prosecution must prove beyond reasonable doubt so as to earn a conviction, namely:a.The death of the deceased, and cause of deathb.That the accused committed the unlawful act which cause the deceased’s death; andc.That the accused had malice aforethought.The issue for determination in this case is whether these three ingredients of murder have been proved by the prosecution beyond reasonable doubt.” 22.There exists no doubt as to both the fact and cause of death of the deceased. 23.PW3 testified that the cause of death was multiple organ failure caused by septic shock following perforation of the intestines after an assault. 24.The issue in contention is whether the said death was caused by an unlawful act of omission or commission on the part of the accused. 25.It is conceded that there was no eye witness to the offence herein, and therefore the case is wholly based on circumstantial evidence. As held in Kariuki Karanja v R (1986) KLR 190, 193 citing R. v Kipkering arap Koskei 16 EACA 135, the foundational requirements for the application of circumstantial evidence to justify a conviction are as follows:“Circumstantial evidence to sustain a conviction must point irresistibly to the accused. In order to justify, on circumstantial evidence the inference of guilt the inculpatory facts must be incompatible with the innocence of the accused, and incapable of explanation upon any other hypothesis than that of guilt. The burden of proving facts which justify the drawing of that inference to the exclusion of any other reasonable hypothesis of innocence is always on the prosecution and never shifts: Rex v. Kipkering Arap Koskei, 16 EACA 135. An aggregation of separate facts inconclusive because they are as consistent with innocence as with guilt is not good enough evidence.” 26.PW1, the mother of the deceased, testified that, on 13/7/ 2019, the deceased returned home while intoxicated at 10.00 p.m and complained of abdominal pain. The deceased informed her that it was Stephen, the accused herein, who had assaulted her. Acting on that information, she first proceeded to the home of the accused but did not find him there. She thereafter went to make a report at Kagio police station, but the police insisted that the deceased would have to be presented at the station. Upon returning home, she found that the deceased had succumbed. 27.On 13/7/2019 at 11.00 a.m, PW2 was in the company of the deceased and the accused, drinking beer at Kwa Wamunga club. The deceased and the accused subsequently left, before returning at around 2.00 p.m to resume drinking. Thereafter, the deceased and the accused left together, but before they could reach the home of the accused, she was informed that the deceased and the accused were engaged in a physical altercation. She telephoned PW4 to relay the information, and the two proceeded towards the home of the accused. Upon arrival, they found no indication that any fight had occurred, and they went back to the club. 28.PW2 stated that, “Stephen started buying beer for her at that time. They drunk a bit then went to Stephen’s at about 4.00 p.m. Before they reached Stephen’s I was called by another lady and told Stephen and Susan were fighting. I called Susan’s sister Julia Wambui and we went towards Stephen’s home. Near Stephen’s gate we found them and found there was no fight. They were just arguing and agreeing to enter Stephen’s place. So Julia and I went back to the club.” On cross examination, she stated that, “We were at the club. Susan call me and Stephen and Julia. We started drinking at 9.00 a.m. Stephen and Susan left the club at 4 p.m. They were drunk. They were staggering. We went with Juliana when we heard they were fighting. They were lovers I did not see Stephen hit Susan.” In re-examination, she stated that, “I heard Steve and Susan were arguing when we got there we found they were arguing and decided to leave them alone as they were lovers.” 29.PW4, the sister to the deceased testified that, “On 13th July, 2019 I met with another person who informed me that my sister was being beaten by Stephen Warui Murimi. We went with Ann Njoki who had informed me. I found them seated and struggling with each other spying at each other. I told them to go home will I left them. I found them seated on the ground.” On cross examination, she stated that, “I know the accused since he was born. I found them near the road heading to Muriu’s house. I did not find them fighting. I found her seated only crying. I left them and went back to the club I used to drink.” In re-examination, she stated that, “My sister told me that it was Stephen Muriu who had beaten.” 30.PW2 and PW4, the alleged eye witnesses were categorical in their respective testimonies that when they arrived at the scene, there were no signs of a physical beatings, and the deceased and the accused were just sitting on the ground arguing, struggling and pulling at each other. 31.PW1 and PW4 sought to rely on the statements allegedly made by the deceased to the effect that she had been assaulted by the accused. In law, such statements are referred to as dying declarations. PW4’s drunken state about the time of the incident diminishes any cogency in her testimony. She said on re-examination that “On 13/7/2019, I was drunk. On 14/7/2019 when mother told me to make tea for my sister I was not drunk. My sister told me that it was Stephen who had beaten.” Even assuming the deceased told PW2 and PW4 that it was Stephen who had beaten her, the circumstances that she had been long drinking reduces the quality of her statement. 32.A dying declaration is an exception to the rule against hearsay and is admissible under section 33 (a) of the Evidence Act where the statement relates to the cause of the declarant’s death or the circumstances of the transaction that resulted in the death. Nevertheless, courts have consistently cautioned that such evidence must be received with considerable circumspection. Most importantly, a dying declaration is not a standalone principle, but rather a part of the web of circumstantial evidence. As counselled by the Court of Appeal in Mogaya v Republic [2026] KECA 632 (KLR), that:“Notwithstanding section 33 (a) of the Evidence Act, courts have consistently adjured that evidence of a dying declaration must be admitted with caution because firstly, the dying declaration is not subject to the test of cross-examination and secondly, circumstances leading to the death of the deceased such as acts of violence, may have occasioned confusion and surprise so as to render the deceased’s perception questionable. While it is not a rule of law that a dying declaration must be corroborated to found a conviction, nevertheless the trial court must proceed with caution to ascertain that a conviction founded on a death declaration is indeed safe. (See - Philip Nzaka Watu v Republic [2016] KECA 696 (KLR)).” 33.The Court reiterated the need for exercise of caution and seeking corroboration, before conviction in MERU HCCRC NO. 60 OF 2015, R v. Stanley Mugambi Nkunja, Joseph Kimathi Kamuru & Ezekiel Ntongai Rwata of 8th July 2024. 34.In the present case, the alleged statements were made on 13th and 14th of July, 2019 to PW1 and PW4, respectfully, while death occurred on 15th of July, 2019. While the mere lapse of time between the making of the statements and the death of the deceased, does not, of itself, render them inadmissible, it is a material consideration in assessing their probative value, as the interval may ultimately affect their reliability. 35.Accordingly, in the absence of cogent corroborative evidence linking the accused to the alleged assault, the court is unable to attach substantial probative value to the alleged dying declarations. The court considers it unsafe to found a conviction principally upon such evidence in the circumstances. In his sworn defence, the accused acknowledged being with the deceased on 13th, but vehemently denied committing the offence, attributing the beating to some boda boda riders. That evidence was not subjected to any meaningful cross examination. 36.In this case, where the nexus between the commission of the offence and the accused has not been established, the occasion for examination as to the presence of malice aforethought has not arisen. The circumstances of the alleged beating raise further concern. PW2 said she that she had been told by “another lady [that] Stephen and Susan were fighting”. PW4 who said of her sister:“She told me she had pain on the head and on the right side of her ribs. She told me that she had been fighting with her friend along the road. She said it was Stephen Warui. .... Stephen Warui was a friend of Susan. They did not live together. They were lovers.”A fight in drunken stupor of two lovers is not a standard murder scenario. Perhaps a manslaughter charge might have been more appropriate, if evidence of such beating by the accused was availed. The persons who allegedly witnessed the fighting were not called to testify before the Court. 37.Suffice it to state that even if it had been established that it was the accused who had beaten the deceased in circumstances which some witnesses described as fighting according to, the accused own drunken state would put to question his ability to form the necessary mens rea for the offence of murder! See the Court of Appeal decision in Bakari Magangha Juma v Republic [2016] KECA 162 (KLR) on the defence of intoxication and this Court in Republic v Kimathi alias Feisal [2025] KEHC 321 (KLR):“ 30.The principle of law relating to intoxication as a defence by reason of inability to form necessary intent is set out in Bakari Magangha Juma case, supra, as follows: “The third situation, contemplated by section 13(4), arises where by reason of intoxication the accused person is incapable of forming a specific intent, which is an element of the offence charged. Sometimes this situation is refereed to as “intoxication or drunkenness negativing mens rea”. In Said Karisa Kimunzu v. Republic, CR App No. 266 of 2006 (Msa), this Court stated thus regarding intoxication or drunkenness negativing mens rea:“But under subsection (4) the court is required to take into account the issue of whether the drunkenness or intoxication deprived the person charged of the ability to form the specific intention required for the commission of a particular crime. In a charge of murder such as the one under consideration, the specific intention required to prove such an offence is malice aforethought as defined in section 206 of the Penal Code. If there be evidence of drunkenness or intoxication then under section 13(4) of the Penal Code, a trial court is required to take that into account for the purpose of determining whether the person charged was capable of forming any intention, specific or otherwise, in the absence of which he would not be guilty of the offence. In the circumstance of this appeal, the learned trial Judge was required to take into account the appellant’s drinking spree of the previous night and even that morning in determining the issue of whether the appellant was capable of forming and had formed the intention to kill his son.”From the foregoing, we are satisfied that the respondent’s assertion that the defence of intoxication is only available to an accused person where he is proved to have been insane by reason of intoxication is absolutely without merit. In Julius Obare Angasa v. Republic, Cr. App. No. 271 of 2008, this Court quoted David Munga Maina v. Republic, Cr. App. No. 202 of 2005 and addressed the issue directly as follows:“...a party who says he had taken some liquor is not necessarily raising the defence of insanity. Such a person may only be asking the court to take into account the fact of his having consumed liquor and whether that state had deprived him of the ability to form the specific intent to kill. The court is under a duty to consider such a defence where it is raised…”In this case, the appellant having raised the defence of intoxication and having led evidence of his state of intoxication on the material day, which was never challenged or controverted by the prosecution, the trial court was duty bound to take it into account for the purpose of determining whether the appellant was capable of forming malice aforethought, in the absence of which he could not be guilty of murder. If the trial court were to be satisfied that the appellant killed the deceased but without malice aforethought, it would have been entitled to convict him of manslaughter rather than murder. (See for example Karisa Wara v. Republic, Cr. App. No. 267 of 2006; Peter Kariuki Kaburu v. Republic, Cr App. No. 234 of 2009; and Boniface Gathege Wacheke v. Republic, Cr. App. No. 12 of 2010).” 38.Taking into consideration the totality of the evidence, the court finds that there is insufficient evidence that irresistibly points to the accused as the only person who committed the offence, which is consistent with his innocence and explicable on any other hypothesis other than that of his guilt. Orders 39.Accordingly, for the reasons set out above, the court finds the accused, Stephen Waweru Muriu, not guilty and is, consequently, acquitted of the offence of murder contrary to section 203 as read with 204 of the Penal Code. 40.The accused’s surety shall be discharged and the security released to the depositor.Order accordingly. DATED AND DELIVERED THIS 9TH DAY OF JULY 2026.EDWARD M. MURIITHIJUDGEAPPEARANCES:Mr. Mwangi for DPP.Mr. Muriuki Muriithi for the Accused.