https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9598

**** **REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT MACHAKOS** **CRIMINAL CASE NO. 16 OF 2019** **REPUBLIC ……………………………………………..PROSECUTION** **VERSUS** **JOSEPH MAKAU MUSYOKO …………………………1st ACCUSED** **MOSES MULI MUSAU …………………………………2ND ACCUSED** **RULING** 1. The accused persons face a charge of murder contrary to **Section 203 as read with Section 204 of the Penal Code.** It is alleged that on 5th April 2019 at a place called Kaluluni in Machakos County murdered **Daniel Mwangangi Musyoko.** 2. The accused pleaded not guilty to the charge whereupon the prosecution called nine (9) witnesses in order to prove its case. 3. After the close of the case for the prosecution, the learned advocates for the parties elected to make their arguments by way of written submissions. 4. I have considered the evidence and submissions by both sides carefully and my finding is that the prosecution has made out a prima facie case against the accused persons sufficiently to warrant them to enter their defence. 5. As submitted by both sides a prima facie case is one where a reasonable tribunal properly directing itself would convict, even were the accused person to remain silent when put on their defence. 6. In this case the death of the deceased is not disputed. There is also evidence that the death was occasioned by a human hand through a brutal act – he had several injuries on his neck, the genital organ was chopped off and the tongue slashed hence conclusively proving the death was by an unlawful act. 7. As to whether the act was of malice aforethought, it is trite that malice aforethought can be inferred from the nature and extent of the injuries inflicted. In the case of **Nyakundi v Republic (Criminal Appeal No.144 of 2020 [2026] KECA 187 KLR.** The Court stated: ***“[32] The Eastern Africa Court of Appeal in Rex vs Tubere s/o Ochen (1945) EACA 63 stated that in determining the existence or nonexistence of malice, one has to look at the facts, the weapon used, the manner in which it is used and part of the body injured. Malice aforethought may also be inferred from the acts of the accused person. This Court in Ernest Asami Bwire Abanga alias Onyango vs R (CACRA No. 32 of 1990) stated that the question of intention can be inferred from the true consequences of the unlawful acts or omission of the brutal killing, which was well planned and calculated to kill or to do grievous harm upon the deceased. (See also: George Ngotho Mutiso vs Republic [2010] eKLR, & Karani & 3 Others v Republic [1991] KLR 622).*** ***[33] As decided cases suggest, there has to be intent to cause harm or death or knowledge that an act can cause death or injury on the part of the accused person. Did the evidence establish the requisite mens rea on the part of the appellant? We have perused the evidence tendered before the trial court and the impugned judgment. We note that by attacking the deceased with a panga and a stick, the appellant ought to have known that he would cause grievous bodily harm or death. Further, the postmortem report shows that the deceased died of asphyxia, secondary to manual strangling. Strangulation, even by itself without any other injuries, is potentially fatal and the fact that she was strangled until she died manifests a motive to kill, that is, the presence of mens rea. In Rex vs. Tubere s/o Ochen (Supra), it was stated that if repeated blows to the vulnerable parts of the body are inflicted, then malice aforethought can be inferred. In the same vein, strangulation till death occurs is clear evidence of premeditated murder. Accordingly, it is our finding that malice aforethought was sufficiently proved to the required standard.”*** 1. Flowing from the above findings of the Court of Appeal, I am satisfied that malice aforethought was also proved beyond reasonable doubt. 2. As to the identification of the perpetrators of the unlawful act, there is only circumstantial evidence as there was no direct eye witness to the crime. I am however satisfied as of now, that there is circumstantial evidence against the accused persons sufficient to warrant this court to place them on their defence. They shall therefore be required to enter their defence as provided in **Section 306 (2) of the Criminal Procedure Code.** It is so ordered. **Ruling signed, dated and delivered virtually through Microsoft teams on this 25th day of June, 2026.** **E. N. MAINA** **JUDGE** **In the presence of:** Mr. Masila for the State Mr. Nabende for both accused persons Both accused persons Catherine - Court Assistant/Interpreter