https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12462

 **REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT MACHAKOS** **CRIMINAL CASE NO. E021 OF 2022** **REPUBLIC .................................................................... PROSECUTION** **VERSUS** **JOHN MUTUA MUSYOKA ............................................... ACCUSED** **JUDGMENT** 1. The accused herein was 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 10th day of July 2022, at Nthuluni village, Ngamba sub-location, Miu location, in Mwala Sub-County within Machakos County, he murdered Jackson Musyoka Nzoka, alias Malonza, his own father. 2. The accused person pleaded not guilty to the charge. 3. The prosecution called a total of nine witnesses in support of its case. Briefly, they presented their case as follows: **PW1, Naomi Ngina Malonza**, the accused's sister, testified that on 10th July 2022 she accompanied the accused to their father's homestead, the accused intending only to greet the deceased. On arrival, she assisted the deceased with cooking githeri while the accused swept the compound. The accused and the deceased later sat together and talked, and in the course of the conversation the accused asked the deceased why he had chased their mother away, at which point the deceased became agitated. She testified that it was the deceased who first reached for a catapult and stones and chased the accused, and that the accused took to his heels. The deceased pursued him for a distance before returning and locking himself inside the house. The accused thereafter returned holding a plank, knocked on the door, and when the deceased opened it holding a stick with which to strike him, the accused struck the deceased on the head with the plank he carried. The deceased fell and did not respond when PW1 called out to him. She ran to a nearby church to summon their mother, and together they took the deceased to Muthetheni Dispensary while a report was made at Muthetheni Police Post. 1. **PW2, Tabitha Kathanzu**, the deceased's wife and the accused's mother, testified that upon being summoned by PW1 she found the deceased bleeding profusely from a head wound. Her account was corroborated by **PW3, John Mutisya Nzoka**, the deceased's stepbrother, whose assistance PW1 had also sought, and by **PW4, Peter Ndolo Mutisya**, who assisted in arranging transport to hospital. 2. **PW5, Dr. Kamotho Watenga**, a pathologist, testified that he performed a post mortem examination on the deceased's body at the Machakos Funeral Home on 14th July 2022. He found that the deceased had lost a significant quantity of blood, exhibited moderate peripheral cyanosis, and, upon removing a bloodstained bandage from the head, observed a laceration on the frontal scalp, an abrasion to the right frontal area, a further injury over the right frontal zygoma, a skull fracture measuring 12 centimetres, and bleeding within the brain, including a left epidural haemorrhage. He concluded that the cause of death was head injury secondary to blunt force trauma, and issued a death certificate to that effect. 3. **PW6, Margaret Wahu Maina**, a government analyst, testified that she analysed a wooden stick, marked as an exhibit, to determine whether it bore human blood. She confirmed, following a biochemical analysis, that the stick was stained with human blood and that the DNA profile generated from that blood matched the blood specimen taken from the deceased. 4. **PW7, Justus Mutuku Mwendandu**, the area Assistant Chief, testified as to the events immediately following the incident and the arrest of the accused. **PW8, Sgt. Johnson Nduati Muragu**, attended the scene, recovered the stick exhibit, and interrogated PW1. **PW9, PC Dominic Kilili**, the investigating officer, testified as to the investigations undertaken, including his interrogation of PW1 as the person present at the scene, and produced the recovered stick in evidence. 5. The post mortem report and the government analyst's report were produced in evidence without objection. 6. At the close of the prosecution's case, and upon consideration of written submissions filed by both counsel on whether the accused had a case to answer, this Court, in a ruling delivered on 25th September 2025, found that the evidence of PW1 and PW2, taken together with the balance of the evidence, placed the accused at the scene and directly connected him with the death of the deceased, and accordingly placed the accused on his defence pursuant to Section 306(2) of the Criminal Procedure Code. 7. **DW1, John Mutua Musyoka**, the accused, elected to give sworn evidence. He testified that on 10th July 2022 he left his place of work at about 9.00 a.m. to go and greet his father, and that he met his sister, PW1, along the way, who accompanied him. On arrival at the deceased's home they found him alone. The accused swept the compound while PW1 assisted with cooking, and he later sat with the deceased and they talked and shared oranges. 8. He testified that when he asked the deceased where their mother was and when he intended to fetch her, the deceased did not answer but instead picked a mango tree branch and began beating him, continuing even after the branch broke, and that he sustained the beating on his back before he managed to get up and take hold of the remaining stick. He stated that the deceased, who had a catapult in his pocket, used it on him before retreating into the house and locking himself in. 9. He testified that he went round the house and struck the door with the stick merely to establish whether it was locked, not intending a confrontation, and that on hearing this the deceased came running out with the same stick later produced in evidence, raising it to strike him. He stated that he grabbed the stick, that the two of them struggled over it, and that in the course of that struggle, fearing his own father, he felt the stick strike him somewhere, after which the deceased was left holding the stick. He maintained that he then fled the scene, leaving his father alive and still holding the stick, and returned to his place of work, where he was arrested the following day. He denied ever striking the deceased and maintained that any injury sustained by the deceased arose from their mutual struggle over the stick rather than from any blow he delivered. 10. In the final submissions dated 25th February 2026, learned Counsel for the accused submitted that the deceased was the aggressor throughout, having first attacked the accused with a catapult and stones and thereafter with a stick; that the accused acted in lawful self-defence to an unlawful and continuing attack; or in the alternative that any force used was occasioned by grave and sudden provocation. Further, that no malice aforethought had been established as there was no premeditation, concealment, or weapon carried in advance, and that the evidence of PW5 and PW6 was undermined by inconsistencies going to their credibility and the reliability of their findings. Counsel urged an acquittal, or, in the alternative, a conviction for the lesser offence of manslaughter. 11. No final submissions were received from prosecution Counsel. **Analysis and Determination** 1. I have considered the evidence tendered by both the prosecution and the defence, together with the submissions filed. It is the duty of the prosecution to prove the guilt of the accused beyond reasonable doubt. The offence of murder is prescribed by **Section 203 of the Penal Code**, which states: **"*Any person who of malice aforethought causes death of another person by an unlawful act or omission is guilty of murder."*** 1. In the case of ***Anthony Ndegwa Ngari v Republic [2014] eKLR***, the Court of Appeal identified the three ingredients of the offence of murder as: ***"(a) the death of the deceased and the cause of that death;*** ***(b) that the accused committed the unlawful act which caused the death of the deceased; and*** ***(c) that the accused had the malice aforethought."*** 17. I will consider each of these elements in turn. 18. As regards the death of the deceased and the cause this is not in dispute. It is confirmed by the evidence of PW1, PW4 and by the post mortem report produced by PW5. It is also admitted by the accused. 19. As to the cause of death, learned Counsel for the accused raised concerns as to PW5's documentation of her professional standing and as to an alleged inconsistency between the pathologist's oral evidence and the written report. I have considered the submissions and am satisfied that PW5 gave a coherent account of the external and internal findings; that those findings were internally consistent in regard to the laceration, the skull fracture, and the intracranial haemorrhage. There was no serious challenge to her evidence and to her standing as a qualified pathologist at the appropriate time and I am satisfied as to her qualifications. I am also satisfied that her evidence, sufficiently proved the cause of the death as being a head injury secondary to blunt force trauma. Her findings are consistent with the eye witness account. I am therefore satisfied that the death was as a result of an unlawful act. 19. As to whether the accused caused the death, the evidence of PW1 is direct and places the accused at the scene at the material time and in physical contact with the deceased at the moment the fatal blow was struck. This is corroborated by the recovery of a blood stained stick at the scene, which PW1 identified, and which PW6 confirmed bore a DNA profile matching that of the deceased. The accused, in his own defence, does not deny being present and does not deny that the two of them struggled over that very stick. On this point, I find that the prosecution has proved beyond reasonable doubt that the blow that culminated in the death of the deceased was caused by the accused person. 20. The question that then remains is whether the prosecution has proved malice aforethought, and whether it has, on the whole of the evidence, disproved any defences that may be available to the accused person. **Self Defence** 21. Section 17 of the Penal Code subject’s criminal responsibility for the use of force in defence of person to the principles of English common law. 22. In the case of ***Ahmed Mohammed Omar & 5 Others v Republic [2014] eKLR***, the Court of Appeal held that where self-defence is raised however slight, it falls to the prosecution to disprove it, and that the test of reasonableness of the force used is to be assessed subjectively, from the standpoint of the accused's own perception of the danger he faced, rather than with the clinical exactness of hindsight. This principle was recently affirmed by the Supreme Court in the case of ***Kamande v Republic (Petition E032 of 2023) [2025] KESC 18 (KLR)***, where the Court, citing ***Ahmed Mohammed Omar*** (**supra)**, confirmed that under **Section 17 of the Penal Code**, self-defence is to be assessed subjectively and that, where established and not disproved, it entitles an accused person to the corresponding benefit, whether acquittal or a reduced conviction. 23. There is a body of consistent evidence, from both the prosecution's own witness PW1 and from the accused, that it was the deceased who first resorted to violence, arming himself with a catapult and stones and later a stick, and that the accused did not go to his father's home armed or with any premeditated design. To that extent, I accept that the accused was, at the initial stage of the encounter, entitled to defend himself against an unlawful attack, and that a defensive reaction on his part at that point would have been justified. 24. Self defence, however, protects a person against a danger that is imminent. It does not extend indefinitely to sanction a return to the fray once the threat has abated. On the accused's own account, the deceased, having attacked him, retreated into the house and locked himself in. At that point the immediate danger to the accused had passed. He was free to leave, as indeed he says he later did, and no purpose of self preservation required him to remain at the scene, arm himself further, or go to the door and knock upon it. Instead, by his own telling, he went around the house, armed himself with a stick, and struck the door, an act which was reasonably certain to summon the deceased back into confrontation. When the deceased emerged, once again armed, the ensuing struggle, and the fatal blow, arose not from an unbroken continuation of the deceased's initial assault, but from an encounter which the accused himself had reignited after a lull sufficient to remove the imminence upon which a plea of self defence must rest. 25. I am accordingly not satisfied that the force used in delivering the fatal blow can be characterised as necessary self defence in the full sense that would entitle the accused to an acquittal on that basis. The prosecution has, in my view, disproved self defence as a complete answer to the charge, the accused's own account disclosing a resumption of hostilities initiated by him after the initial danger had subsided. **Malice Aforethought and Provocation** 26.The finding that self defence fails as a complete answer does not conclude the matter, for the question of malice aforethought remains distinct and must be considered independently. Section 206 of the Penal Code requires proof of an intention to cause death or grievous bodily harm, or knowledge that the act was likely to cause death, before an unlawful killing may be classified as murder rather than the lesser offence of manslaughter. 27. In the case of ***Nzuki v Republic [1993] eKLR***, the Court of Appeal held that before an act can be murder it must be committed with one of the specific intentions set out in Section 206, and that where the evidence leaves room for more than one view as to that intent, or leaves the court in doubt, the accused is entitled to the benefit of that doubt and the offence properly falls to be treated as manslaughter rather than murder. This principle was reaffirmed by the same court in the case of ***Waweru v Republic (Criminal Appeal 98 of 2020) [2023] KECA 622 (KLR)***, where the Court confirmed that, absent malice aforethought, a killing occasioned during a sudden brawl amounts only to manslaughter. 28. On the evidence before me, there is no suggestion that on that day, the accused set out armed or with any design upon his father's life. The weapon used, a stick found within the compound, was one of opportunity, not of preparation. The encounter, on all accounts including that of the prosecution's own eyewitness, arose suddenly out of a heated exchange concerning the deceased's treatment of the accused's mother, a matter of evident and longstanding family grievance touched upon also in the evidence of PW7. The accused did not conceal the body, did not abscond to parts unknown, and returned to his ordinary place of work, where he was, without resistance, apprehended the following day, conduct which does not sit easily with the concealment and consciousness of guilt that often accompanies a premeditated killing. 29.I am satisfied that the immediate sequence of events, the deceased's initial resort to a catapult and stones followed shortly by a further physical assault with a stick, in the context of a longstanding and evidently sore family grievance, was what led the accused to act as he did. 30. Accordingly, weighing the whole of the evidence, I find that the prosecution has not proved, to the standard required, that the accused acted with malice aforethought within the meaning of Section 206 of the Penal Code. The evidence discloses an unlawful killing arising out of a sudden and mutual physical confrontation, substantially ‘**provoked**’ by the deceased's own conduct, but falls short of establishing the specific intent to kill or to cause grievous bodily harm that the offence of murder demands. 31. For the foregoing reasons, I am not satisfied that the offence of murder has been proved beyond reasonable doubt. I do, however, find that the prosecution has proved beyond reasonable doubt that the accused unlawfully killed the deceased, Jackson Musyoka Nzoka, in circumstances falling short of malice aforethought and amounting to manslaughter. 32. Accordingly, pursuant to **Section 179 of the Criminal Procedure Code,** I hereby find the accused guilty of the offence of manslaughter contrary to **Section 202 as read with Section 205 of the Penal Code** and convict him accordingly. It is so ordered. **Judgment signed, dated and delivered virtually through Microsoft Teams on this 30th day of July, 2026.** **E. N. MAINA** **JUDGE** **In the presence of:** Mr. Masila for the State Mr. Muteti for the accused The accused Miriam - Court Assistant/Interpreter