https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9925

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT THIKA** **CRIMINAL CASE NO E020 OF 2024** **REPUBLIC...................................................................................PROSECUTOR** **VERSUS** **MARTIN MBUGUA MWANGI..................................................... ACCUSED** **JUDGMENT** **The charge** 1. The accused person faces a charge of murder contrary to Section 203 as read with Section 204 of the Penal Code. The particulars of the charge are that on 31st May 2024, the accused murdered one Hellen Murugi Njoki at Landless in Mountain View Estate in Thika West Sub-County within Kiambu County. He pleaded not guilty to the charge. **Background Facts** 1. The prosecution’s evidence in summary was that the accused and the deceased were husband and wife who had stayed together for almost twenty years and had two children of the union. At the time of the incident, the couple lived in a two roomed house at Landless Mountain View Estate in Thika part of the rental plot of the deceased’s mother. The witnesses PW1, PW2, PW3 and PW5 who included two sisters of the deceased told the court that the couple had a troubled marriage where fights were a common feature. Reconciliation by PW3 the village elder, friends and relatives over the years did not bear fruit. The couple were habitual alcohol abusers which was admitted by the accused in his defence. During the time of the offence, the accused was working as a driver while the deceased was unemployed, having lost her job earlier. One of the witnesses said that the couple were wanting of financial assistance from the deceased’s mother and sisters. They had neglected their children who had been taken up by close relatives for care and maintenance. 2. The prosecutions witnesses did not witness the incident and as such, the evidence was mostly circumstantial. PW1 a sister to the deceased lived within the same plot where the couple lived with belonged to their mother. She testified that on 02/06/2024, four people being two men and two women went to her house and told her that the deceased had gone missing for some time and that they had come to check on her in her house. PW1 directed them to the house of the deceased. After a short while, PW1 heard screams from the deceased’s house and she went there and found that even neighbours had gathered there. PW1 called police on phone from Makongeni Police Station who came to the scene. The accused had locked himself in the house as the deceased’s body was lying therein. The people outside the house told PW1 that they had peeped through the widow and seen the half naked body of the deceased. PW1 called PW3 who then reported the incident to the police on phone. Police came to the scene but accused who was armed with a knife refused to open the house. The house was later broken into using a mattock donated by a neighbor. 3. According to the witnesses especially PW2 and PW4 said that the accused had threatened to stab the police with the knife if they dared force the door open. When he came out the accused had already stabbed himself with the knife and was bleeding. Further evidence was that the accused was rushed to hospital for treatment where he remained admitted for three (3) days. He was later charged with the offence following a positive mental assessment report by Dr. Amos Kariuki (PW8). He was found fit to plead and was a drug abuser. 4. PW2 was the last born sister of the deceased who gave evidence on the couple’s troubled marriage for a period of over seven years before the incident. She testified that the marriage was on and off caused by quarrels and alcohol abuse by both parties. After living in various rental houses, the couple was given a house by the deceased’s mother where they were when the incident occurred. The deceased was said to have expressed fear before the incident that the deceased had threatened to kill her and had already informed PW2 where she wished to be buried in the event that the threat was actualized. PW2 did not witness the incident of the alleged murder but was present at the house of the accused at the time when friends, neighbours and police went there. 5. PW3 lived in the neighbouring plot and went to the scene and found police had already arrived. He knew the couple and confirmed that they lived in a troubled marriage where they fought quite often. He was a workmate of the deceased before she lost employment and she often shared with him about her troubled marriage life. 6. PW3 and PW4, were neighbor and friend of the deceased and used to drink together. The two testified that the accused was very violent and assaulted the deceased often. PW4 said she was once shown knife stab scars on deceased’s stomach and neck following assault by the accused in the year 2023. It was much later on 02/06/2024 that she learnt of the death of the deceased. PW4 then went to the couple’s house and saw the accused with fresh stab wounds. The witness said that the accused had injured himself in presence of the police who were at the scene as she learnt from the people present at the scene. 7. PW5 testified that on 30/5/2024 around 9.00 a.m, the accused called her on phone and complained that the deceased had reported him to the area chief for assaulting her. PW5 advised the accused to reconcile with his wife on whatever issues they had. PW5 later learnt that the complaint was later withdrawn. On 01/06/2024, PW5 called both the deceased and the accused on phone and there was no answer to the phones. She further learnt that the accused had told some people in the bar that the deceased was dead. When she went looking for the accused and confronted him on the information she had received, he told her that the deceased had been hit by a lorry. The body of the deceased was discovered in their residential house the following day. 8. PW6 said she did not witness the incident but was present at the home of the accused when police removed the deceased’s body and arrested the accused who had already stabbed himself with a knife. PW7, the village elder who lived with them in the same estate visited the scene after he was alerted by PW1 of the discovery of the deceased’s body in her house. PW7 is the one who called the O.C.S. Makongeni Police Station on phone. He came to the scene with his officers a short while late. He said he had received reports about the frequent fights between the accused and deceased and had tried to reconcile them. He said he was aware of the case of assault reported by the deceased to the area Assistant Chief which complaint was withdrawn. 9. PW8 a cousin to the deceased identified the body to the doctor for postmortem while Dr. Mathaiya performed the postmortem. He opined that the cause of death was the severe chest injuries due to single penetrating sharp force trauma consistent with homicide. The deceased had other multiple injuries on the head, upper limbs that contributed to her death. The injuries on the upper limbs were defence injuries that could have occurred during a fight. 10. The Government Chemist Analysis report was produced by PW11 who testified that the DNA profile on the blood on the knife recovered from accused (item G) and the top (blouse) (item A2) matched the DNA profile generated from the buccal swab of the accused (item F) with a random match probability of 1 in 4.4327x1030 . 11. The DCI and police officers PW12 and PW13 who visited the scene testified that they found neighbours gathered outside the house of the accused and that he had refused to open the house. The accused who was inside threatened to stab anyone who accessed the house using the knife he was holding. The door was forced open and accused came out having stabbed himself with the said knife. He was bleeding and was rushed to Thika Level 5 hospital for treatment. 12. Dr. Rose Muchemi PW14 produced the P.3 from in regard to the treatment of the accused at Thika Level 5 hospital. The accused was in a state of intoxication on admission. The accused had a scar on the left neck measuring 2x2 cm, other scars on the thorax, abdomen, on 7th rib and on the chest. The injuries were 18 days old at the time he was examined and P.3 form filled by the doctor on 20th June 2024. The injuries were assessed as grievous harm. The injuries were said to have been caused by a sharp object and were self-inflicted according to the doctor. 13. The investigating officer PW16 testified on how the various exhibits were recovered including the knife. The witness testified that blood samples of the deceased, clothes, finger nails, rib, and catridge were obtained and sent to Government Chemist for forensic analysis. They included buccal swab of the accused. The exhibit memo together with physical exhibits were produced in evidence. **The Defence** 1. The defence of the accused was that the deceased was his wife of nineteen (19) years and that they had two children. He said he recorded a statement under inquiry on 18/06/2024 and said he worked as a driver of a P.S.V. vehicle. He said he was suffering withdrawal symptoms at the time he recorded the statement. On the date of the incident, the accused said he had spent the day at work and that he had stayed with his wife peacefully until both of them engaged in habitual drinking and drug abuse from the year 2022 which changed their lives completely. He said the deceased was employed but she lost her job as a result of excessive drinking. She often came home late which caused the couple to fight often but would later reconcile. The accused added that apart from alcohol abuse, they also frequently used cannabis sativa. 2. On the material day, which was 31/05/2024, the accused was at home with the deceased in the evening, the children having returned to school two days earlier. Between 2.00 – 4.00 p.m. the accused and his conductor had gone to a bar known as Makongeni WeighBridge to drink. Later on, they went to Black Diamond Bar at Makongeni Estate where he lived. In the latter bar, he found the deceased with her friends whom he was familiar with, namely Catherine Njoki (PW5) and Stella Njeri (PW4) who were prosecution witnesses. In their company was a man whom he did not know but was introduced to him as Charles. The accused said he went home with the deceased after 5.30 p.m. On arrival at home, the couple settled down and later went to sleep. A quarrel between the two that had started the previous evening continued in the night. The accused and deceased later slept. The accused said he was woken up by an attack by the deceased who was stabbing him with a knife. He held the deceased’s hand which was holding the knife. The two struggled and both fell down on the floor. He noticed that the deceased had a stab wound on the chest. He left her in the house and proceeded to the bar to drink. When he returned, he found the deceased still lying where he left her. The accused confronted the deceased alleging that she was having a love affair with the man he had met in her company in the bar the previous evening whom he referred to as Charles. He added that this was the reason for the fight on the material night. The accused said he had no intention of killing the deceased. The deceased, according to the accused had previous incidents of cheating on him. 3. On cross-examination, the accused said his statement under inquiry was voluntary and that he indicated he was fit to plead. He said the stab wound on the deceased’s chest may have occurred during their struggle in the material night. In his statement, he had indicated that he had stabbed the deceased in their house in the material night. **The Prosecutions Submissions** 1. The prosecution submitted that the evidence of their sixteen witnesses was sufficient to prove the offence of murder to the standards required in criminal cases. It was argued that all the ingredients of the offence namely, death of the deceased, unlawful act and malice aforethought on part of the accused had been proved. The involvement of the accused person in the murder was established. 2. The evidence of the prosecution witnesses was summarized earlier in his judgment. The prosecution highlighted the said evidence in its submissions in relation to the ingredients of the offence the accused is facing herein. 3. The defence of the accused according to the prosecution placed him at the scene of crime and it was emphasized that he was the only person at the scene at the material time. The accused admitted the issue of past fights between the deceased and the accused in their troubled marriage which was supported by the evidence of several prosecution witnesses. Police who visited the scene witnessed the accused stab himself in the stomach which was fortified by the evidence of the doctor (PW14) in her P3 report that the stomach stab wounds were self inflicted. 4. The prosecution relied on the case of **Karani Vs Republic KLR 622** in regard of proof of malice aforethought based on the serious nature of injuries inflicted on the deceased. It was further submitted that the type of weapon used as well as the parts of the body aimed at by an accused ought to be taken into consideration. 5. The prosecution also addressed the issue of circumstantial evidence and its requirement as sufficient proof of the offence of murder citing the case of **Mwangi & Another Vs Republic (2004) 2 KLR 32**. It was further submitted that the prosecution presented both direct and circumstantial evidence. 6. The prosecution urged the court to convict the accused in that the burden of proof had been discharged. The court was urged to reject the defence of the accused in that the evidence against him was overwhelming. **The Defence Submissions** 1. It was submitted that the ingredients of the offence were not proved save for that of proof of death of the deceased. The defence submitted further that malice aforethought on the part of the accused was not proved. The incident that led to the death of the deceased was culminated by past frequent fights between the accused and the deceased and not by a premeditated act. The evidence of the prosecution witnesses were more of the fights between the couple but no evidence of an unlawful act by the accused was adduced. 2. The defence cited the case of **Joseph Kimani Njau Vs Republic 2014 eKLR** where it was held that for an offence of murder to be proved, both the actuareas and the intention to kill must be satisfied. 3. It was also argued that the state of mind of the accused having been intoxicated, it was not possible for him to form the necessary intention to kill the deceased. 4. The defence of self defence was raised to the effect that the accused was defending himself from an attack by the deceased with a kitchen knife on the fateful night. The fact that the statement of the accused was recorded before mental assessment was done and after he received serious injuries. It was argued that the accused was in a state of emotional distress and shock at the time of recording the statement. 5. According to the defence, the prosecution failed to establish the burden of proof in that the circumstances surrounding the death of the accused remain unclear. The defence urged the court to find that the charge of murder has not been proved against the accused. **Analysis and Determination** 1. **Proof of Death** 2. It is noted that the defence conceded to the fact that proof of death was established through the report of Dr. Mathaiya who produced the post mortem report. 3. **That the death of the deceased was on an unlawful act** 4. The identification of the accused was not an issue in this case since he was arrested in his house where the body of the deceased was found. 5. In regard to how the death of the deceased occurred, there was evidence from PW1, PW2, PW4 and PW5 two of whom were sisters of deceased while others were friends and a neighbour. These witnesses testified on the relation between the accused and the deceased to the effect that they were involved in frequent fights and that the deceased expressed fear of being killed by the accused. The deceased had told PW2 a few days earlier that the accused had threatened to kill her. This was only two to three days to the date of the incident. PW1 said that two days before the incident, she had heard screams in the house of deceased sister but because they were used to their frequent fights, she did not go to their house to check what was happening. 6. The date PW1 heard screams from deceased’s house coincides with the date of the offence. The accused in his defence admitted that he quarreled with the deceased on the night in question and there was a fight between them. The accused did not deny that he was present in the house on the material night. During the fight he said the deceased may have been injured by the kitchen knife she was holding during the fight. 7. PW3 and PW4 were with the deceased and the accused in a pub in the evening of the night the deceased died enjoying drinks. The witnesses testified that the accused and the deceased left the pub together heading to their home. The deceased was killed the same night in the said home. In his defence, the accused said the two fought and that the deceased is the one who was armed with a knife that she had aimed at stabbing him. During the struggle, the two fell down and accused suspected that the deceased was injured by the said knife that she held. The accused said it is in the morning hours after he woke up that he realized that the deceased was injured. 8. The evidence of PW6 and PW7 went to the scene on 02/06/2024 after being alerted that the deceased was dead and that her body was in the house occupied by the couple. On arrival at the scene, PW1, PW2, PW4 and PW5 found that the accused had locked himself in the house. Police officers from Makongeni Police Station came to the scene. The witnesses said the body of the deceased was on the floor under the bed and was visible on peeping through the window. 9. The accused who was inside the house was ordered by police to open the door but he refused until the door was broken into. The accused was holding a kitchen knife which was blood stained as he came out of the house. He was seen stabbing himself in the stomach and chest using the knife before the door was forced open. When he came out, police arrested him and seized the knife which he was holding. The knife was blood stained and PW5 confirmed in the Government Analyst report that the blood on the knife matched that of the accused. He was rushed to hospital where he was admitted for three days. Dr. Kariuki (PW9) produced the P.3 form in evidence and confirmed that the accused was treated for the injuries of knife-stab in the stomach, neck, and chest which were self inflicted. 10. The evidence of the prosecution witnesses at the scene and that of the doctor dislodges the defence of the accused that it is the deceased who stabbed him. Some of the witnesses at the scene said they saw the accused stab himself before police broke into the house. It was said the blood on the knife was fresh which resonates with fresh injuries. 11. The accused said he suffered from mental stress following the incident and asked the court to reject his statement under inquiry because he was not in control of himself. In his statement, the accused said that he realized in the morning that he had stabbed the deceased with a kitchen knife. During cross-examination, the accused admitted that his statement was voluntary. The accused changed his story during the defence, saying that he did not stab the deceased and that she may have been injured by the knife she had when he held her in defence and eventually both of them fell down. The defence urged the court to reject the statement because it was recorded before the accused was mentally examined. In my view, this is not a reason to reject the statement since the accused was found mentally fit to plead on 18/06/2024. This court declines to reject the statement under inquiry which the accused confirmed in his defence that it was voluntary. 12. The accused, apart from placing himself at the scene admitted there was a fight between him and the deceased in the night of 31st May 2024. He also lied to their family friend PW5 that the deceased had died as a result of a road accident. The accused stayed with the body of the deceased in the house for two days without reporting the matter to the police which action fortifies both the direct and circumstantial evidence that he killed the deceased on the night of 31/05/2024 after a drinking spree. Notwithstanding the statement under inquiry, the evidence of the witnesses PW1, PW2, PW3, PW4, PW5. PW6, PW7 and PW8 was highly corroborative on the part the accused played in the killing of the deceased. 13. It is not denied that the accused was the last person to be seen with the deceased on the evening of 31st May 2024 and was found with the body of the deceased in their house two days later. He did not report the matter to the police until close friends suspected there was a problem and decided to go to the house where the couple lived where they found him in the house with the deceased’s body lying on the floor. 14. The accused and deceased may have been drunk when the fight arose. However, the accused did not claim that he was so drunk that he did not know what he was doing. Neither did he establish the defence of provocation or that of self defence. I am of the considered view that the prosecution have established that the accused caused the unlawful act that brought the life of the deceased to an end. 15. For a charge of murder to be established, the prosecution must prove that the unlawful act on part of the accused was premeditated, that is, that he had malice aforethought. Section 206 of the Penal code describes malice aforethought as follows: - 16. An intention to cause death of another; 17. An intention to cause grievous harm; 18. Knowledge that the act or omission causing death will probably cause death or grievous harm, whether where that person is the one killed or not; 19. An intention to commit a felony; and 20. An intention to facilitate the escape of any person who had committed a felony or attempted it. 21. Based on the foregoing description of malice aforethought, it is important to note that courts must consider the following in determining existence of malice aforethought: - 22. The nature and gravity of the injuries inflicted 23. The body parts targeted 24. The type of weapon used 25. The conduct of the accused during and after the attack. In this case, Dr. Mathaiya in the post mortem report found that the deceased had suffered grave injuries as follows: - * + 1. Deep penetrating upper interior chest wall laceration through fractured lower border of the 2nd and 3rd rib intercostal muscles as well as massive left hemothorax. 2. Perforated pericardium, anterior wall or right ventricles, basis of the pulmonary trunk (artery) and aorta and interventricular secrum of the heart 3. Multiple facial and scalp bruises 4. Swollen scalp with multiple global patchy subgateal haematoma 1. The cause of death was the deep stab wound in the chest. These injuries were very grave and extensive and were aimed at causing death or grievous harm on the deceased. The most serious injuries were on the chest and head which are organs of the body that are critical to the life of a person. 2. The conduct of the accused before and after the attack was clearly brought out in the evidence of the prosecution witnesses. The accused used to assault the deceased often as PW1, PW2, PW3 and PW4 testified. He threatened to kill the deceased a few days before the incident to an extent that the deceased became so fearful that she had already told her sisters where she would want to be buried in the event that the said threats were to be carried out into action. 3. The evidence on record regarding the grave nature of the injuries inflicted on vital organs of the body and stab wound which supported use of a kitchen knife such as the one produced in court are conclusive evidence of malice aforethought on part of the accused. I find that malice aforethought has been established. 4. In conclusion, I find that the prosecution has proved the case against the accused person beyond any reasonable doubt. I find him guilty of the offence of murder contrary to Section 203 as read with Section 204 of the Penal Code. 5. It is hereby so ordered. ***JUDGMENT DELIVERED VIRTUALLY, DATED AND SIGNED AT THIKA THIS 2ND DAY OF JULY 2026*.** **F. MUCHEMI** **JUDGE**