https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10953

Republic v Mwatela (Criminal Case E005 of 2021) [2026] KEHC 10953 (KLR) (16 July 2026) (Judgment) Neutral citation: [2026] KEHC 10953 (KLR) Republic of Kenya In the High Court at Kajiado Criminal Case E005 of 2021 CW Meoli, J July 16, 2026 Between Republic Prosecutor and Hamilton Kilimo Mwatela Accused Judgment 1.The Accused herein, Hamilton Kilimo Mwatela is charged with Murder contrary to Section 203 as read with Section 204 of the Penal Code. The particulars of the offence are that on 13th day of March, 2021, at Isinya Bus Terminus within Isinya town in Kajiado County, he murdered Ahmed Tarayia Musa. 2.The Accused pleaded not guilty and the matter proceeded to full hearing, the prosecution calling a total of seven witnesses. 3.The prosecution case was as follows. Lankeu Maiponyi testifying as PW1 identified himself as a cousin to the deceased, Ahmed Taraiya Musa. On 13th March 2021, while in Kitengela conducting his business, he received a telephone call informing him that the deceased had been assaulted at Isinya. He proceeded to Kajiado Hospital where he found the deceased and noted injuries to the back of the head. The deceased was later transferred by ambulance to Kenyatta National Hospital for specialized treatment. PW1 stated that the deceased remained hospitalized for several days before succumbing to his injuries. He identified the body during the post-mortem examination. During cross-examination, he admitted that he had not witnessed the assault and only came to know the accused after commencement of the case. 4.The sole eyewitness was Abdishakur Kipale (PW2), who worked as a loader at the Isinya bus stop. He testified that on 13th March 2021 at around midday he was at the stage when a woman approached the Super Coach stage seeking direct transport to Nairobi. After making payment to the deceased who was at the ticket booth, she left briefly before returning and complaining that she had learned that there was no direct vehicle to Nairobi available. Whereupon the deceased confronted the alleged informant who is the Accused herein, who became annoyed and struck the deceased on the back of the head with a stone. He collapsed and was rushed by PW2 and others to hospital. During cross-examination, PW2 said that although the deceased had shoved the Accused, no fight ensued and that he did not use a rungu or take any aggressive step before the Accused picked up the stone and struck him. 5.According to Kisaku Ole Metetesi (PW3), a matatu tout at Isinya stage, he was called by PW2 to assist in taking the injured deceased to hospital. Upon arrival at the stage, he found the deceased lying face down on the ground and was informed that he had been struck on the back of the head with a stone. Together with others, he transported the deceased first to Isinya Hospital and subsequently to other facilities before he was eventually referred to Kenyatta National Hospital. PW3 testified that he later learnt of the deceased’s death. He further stated that he knew the Accused as a person who worked at a nearby hardware shop and frequently visited the kiosk near the stage. 6.The investigating officer was Cpl. Stephen Munyao Kavito (PW4). He narrated that on 13th March 2021 both the deceased’s family and the Accused separately reported assault incidents at Isinya Police Station. He visited the deceased at Kenyatta National Hospital while the latter was in intensive care and unable to speak. The accused was initially arrested and charged with assault. 7.Following the deceased’s death on 18th March 2021, PW4 withdrew the assault charge against the Accused, which was replaced with the present charges. Restating evidence by other witnesses regarding the material incident, PW4 produced a copy of the Accused’s P3 form (Exh.2), the mental assessment report (Exh.5), a stone (Exh.3) allegedly used during the assault, and the sum of Kshs. 300/- (Exh.4) being fare allegedly received from the potential female traveller by the deceased. 8.Dr. Bernard Miidia (PW5), a consultant pathologist at Kenyatta National Hospital, performed the post-mortem examination on the body of the deceased. He described the external and internal injuries observed, including abrasions on the hands, scalp bleeding, subdural haemorrhage, bleeding in the neck muscles, and fracture affecting the upper spinal column. His conclusion was that the deceased died from multiple head and skeletal column injuries resulting from blunt force trauma consistent with an assault. He produced the post-mortem report as an Exh. 1 9.During cross-examination, he explained that the injuries were spread over different parts of the scalp and could have been caused by one irregular object or multiple impacts. He further stated that some findings suggested possible strangulation but maintained that the overall features were indicative of an assault. 10.At the close of the prosecution case, the court found that a prima facie case had been made out and placed the Accused on his defence. The Accused elected to give sworn evidence and called two witnesses. Testifying as DW1, the Accused said that in the material time, he was residing at Isinya, where he worked as a driver at a hardware shop located near the Isinya weighbridge. On 13th March 2021, he proceeded to the weighbridge at around noon to have lunch at a kiosk, and having ordered his lunch, sat next to a man. While he waited, he was approached by a lady who inquired about the availability of an express vehicle to Kitengela. He informed her that no such vehicle was available. 11.Thereafter, a booking desk clerk at a transport company nearby confronted him, accusing him of interfering with his business. Having completed his meal he started to leave, but the same man who is the deceased herein followed him, slapped him and hit him. He fell into a ditch. He then saw the deceased approaching him while armed with a rungu. The Accused picked up a stone and hit him in self-defense, and the deceased fell down. The Accused proceeded to report the assault to the police station and was later treated, and a P3 form completed. He produced an extract of the OB report to police as D.Exh.2. 12.On the following day, he reported at the station as directed, but he found some touts at the station and following a commotion, he was placed in the cells and eventually charged. He later learned that the deceased passed away after one week while undergoing treatment. 13.According to Justus Mwangi Mugendi (DW2) who described himself as an artisan residing at Isinya town, on the material date, he was at Isinya stage for lunch. He was seated on a bench he shared with the Accused when a lady approached to ask about availability of express vehicles which she had allegedly booked but was still waiting for. The Accused advised her to look for other means and she went away. 14.Shortly a man he described as Mohammed (deceased herein) who was at the booking office confronted the Accused for allegedly interfering with his business. Mohammed then slapped and knocked down the Accused before moving forward to strike him with a rungu. Whereupon the Accused picked a stone and hit the deceased who fell. The witness thereafter went back to work. 15.Millicent Nasenya (DW3) a registered clinical officer at Kajiado County Referral Hospital, produced the Accused’s P3 form. She testified that the Accused was attended on the material date at about 1:40p.m.; that he alleged to have been assaulted and slapped on the head and neck. Upon examination, he was found to have tenderness on the head and neck. The injuries were assessed as harm and were consistent with an assault. She produced P3 form as DExh.1. 16.At the close of the defence case, the court reserved a date for judgment and directed the defence to file submissions, the DPP having opted not to. However, on the scheduled judgment date, the court granted the request made by the defence for the late admission of their submissions due to illness on the part of the defence counsel. A fresh judgment date was then fixed. 17.The defence filed submissions are dated 10th June, 2026. Counsel therein submitted that the prosecution had failed to prove the charge preferred beyond reasonable doubt or to disprove the defence of self-defence raised by the Accused. Further asserting that the burden of proof rests upon the prosecution and never shifts to the accused person, as held in Woolmington v Director of Public Prosecutions [1935] AC 462. 18.The defence contended that the deceased was the aggressor as demonstrated by the testimony of the Accused and his witness DW2. A narrative allegedly confirmed by PW4, the investigating officer. Pointing out that the Accused had immediately reported the assault at Isinya Police Station, and was issued with a P3 Form, the defence counsel contended that medical evidence supported the Accused’s complaint of assault. The defence therefore argued that following an unlawful attack against the Accused who honestly believed he faced imminent danger, he had used necessary force to repel the attack. 19.In that regard, counsel invoked Section 17 of the Penal Code to support the defence of self-defence and Palmer v R [1971] AC 814, where Lord Morris observed that a person defending himself cannot be expected to weigh with precision the exact measure of force necessary and that where defensive action is reasonably necessary, a person may do what he honestly and instinctively believes to be required. Also cited was the decision of the Court of Appeal decision in Ahmed Mohammed Omar & 5 Others v Republic [2014] eKLR, where the Court held that self-defence is available where force is reasonably necessary to avert an unlawful attack, and that once self-defence is raised, the burden shifts to the prosecution to disprove it beyond reasonable doubt. 20.Therefore asserting that the circumstances of the present case fell fully within the provisions of Section 17 of the Penal Code and the cited authorities, counsel posited that despite the subsequent death of the deceased, the critical question was whether, at the moment of the attack, the force used by the Accused was reasonably necessary. The defence emphasized that the Accused had already been assaulted, had been knocked into a ditch, faced an advancing aggressor, had no opportunity to retreat, and used the only available object within his reach. Consequently, the Accused’s actions were described as instinctive and reasonable in the circumstances. 21.Regarding proof of malice aforethought, the defence submitted that the prosecution failed to establish any of the circumstances contemplated under Section 206 of the Penal Code. There being no evidence of a prior grudge, premeditation, planning, prior arming of the Accused, or intention to kill the deceased. Rather, the evidence disclosed a spontaneous confrontation that escalated after the deceased initiated physical violence. 22.The defence also highlighted the fact that immediately after the incident, the Accused had reported the matter to the police, and allegedly disclosed that he had struck the deceased with a stone, while seeking police intervention. Such conduct, it was argued, was inconsistent with the existence of malice aforethought. 23.According to the defence, the majority of prosecution witnesses called had not witnessed the material incident and therefore could not shed light on who initiated the violence. It was contended that the prosecution failed to call independent evidence capable of rebutting the direct evidence of the Accused and DW2 concerning the deceased’s own aggressive conduct. Consequently, in view of the two conflicting versions of events, the prosecution failed to dislodge the defence account, and the benefit of doubt ought to be accorded to the Accused. 24.In summation it was submitted that the prosecution failed to disprove the Accused’s self-defence, failed to establish malice aforethought, and ultimately failed to prove the offence of murder beyond reasonable doubt. The Court was accordingly urged to find that the Accused acted in lawful self-defence and to acquit him pursuant to Section 322(1) of the Criminal Procedure Code. Analysis and Determination 25.The court has considered the evidence at the trial and defence submissions. The offence of murder is created by Section 203 of the Penal Code which provides that:“‘Any person who of malice aforethought causes the death of another person by an unlawful act or omission is guilty of murder’’. 26.In Chela vs Republic 2025 KECA 49(KLR) the Court of Appeal stated that for the offence of murder to be established, four crucial ingredients must be proved beyond a reasonable doubt by the prosecution. These are:a)The fact of the death of the deceased;b)The cause of such death;c)Proof that the deceased met his death as a result of an unlawful act or omission on the part of the accused persons, and lastly,d)Proof that the said unlawful act or omission was committed with malice aforethought. 27.In the case of Roba Galma Wario vs Republic [2015] eKLR the Court of Appeal rested the ingredients of murder as follows:“For the conviction of murder to be sustained, it is imperative to prove that the death of the deceased was caused by the appellant; and that he had the required malice aforethought. Without malice aforethought, the appellant would be guilty of manslaughter, as it would mean the death of the deceased during the brawl was not intentional.” 28.The burden of proving the preferred offence beyond reasonable doubt rests with the prosecution, and the burden never shifts. The basic facts of the case were undisputed. On the material date, both the Accused and deceased were at the Isinya bus stage at about noon, and following certain travel information given to a potential passenger by the Accused, the deceased who was a ticketing clerk at the terminus was unhappy and confronted the Accused, and as admitted by PW2, shoved him. As to the ensuing events ending with the deceased’s multiple injuries on the head, there was some contention, but it is undisputed that the Accused using a stone to struck the deceased on the head, allegedly in self defence, as a result of which the deceased sustained severe injuries from which he subsequently died while undergoing treatment at the Kenyatta National Hospital. 29.According to PW5, the pathologist who conducted the post-mortem examination, the cause of death was multiple head and skeletal column fracture resulting from blunt force trauma, consistent with assault. The court is therefore satisfied that the cause of death was proved beyond reasonable doubt. 30.The issue falling for determination is whether the Accused’s admitted action leading to death of the deceased was unlawful and accompanied by malice aforethought. The Accused, while admitting striking the deceased with a stone, advanced the defence of self-defense, allegedly after the deceased, who had slapped him, knocked him into a ditch and approached him with a rungu. This version, though supported by DW2, was disputed by PW2 during cross-examination. According to PW2 the deceased after confronting the Accused and pushing him did not pursue him with a rungu. 31.It was not put to PW2 in cross-examination that the Accused fell into a ditch. And while it may well be that the deceased in addition to pushing the Accused may have also slapped him, if indeed the Accused fell into a ditch, it is hard to see how the multiple injuries on the deceased’s head came to be, unless the two men were locked in combat for some time. The evidence of the pathologist appears to support this possibility. PW5 in his evidence-in-chief described the injuries to include abrasions on the deceased’s hands with underlying bleeding as indicating contact, subdural bleeds in the head, on scalp, neck muscles on the front and back, and fracture of the upper spine . 32.During cross-examination, PW5 stated:“The findings (injuries) were mainly on the head. The bleeds on both sides of the skin of the head…at the upper sides of the head and near forehead.Upper part of the bone of the spine near the neck. Whatever was used to hit him was multiple and were spread over the scalp. It may have been different objects or one object that was not smooth. There may have been possible strangulation…” 33.For his part, the Accused from his medical evidence sustained what appear in comparison to be minor injuries in the nature of tenderness over the neck, equally suggesting contact, and assessed as harm. 34.As regards malice aforethought, Section 206 of the Penal Code defines the ingredients thereof to include: -“a)An intention to cause the death of or to do grievous harm to any person, whether that person is the person actually killed or not;b)Knowledge that the act or omission causing death will probably cause the death of or grievous harm to some person, whether that person is the person actually killed or not, although such knowledge is accompanied by indifference whether death or grievous bodily harm is caused or not, or by a wish that it may not be caused;c)An intent to commit a felony;d)An intention by the act or omission to facilitate the flight or escape from custody of any person who has committed or attempted to commit a felony.” 35.In the case of Republic vs Tubere s/o Ochen [1945] 12 EACA 63, cited by the Court of Appeal in Chela vs Republic (supra) the Court identified circumstances from which an inference of the existence of malice aforethought could be made to include:“The nature of the weapon used; the manner in which it was used; the part of the body targeted; the nature of the injuries inflicted either a single stab wound or multiple injuries; the conduct of the accused before, during, and after the incident.” 36.The Court of Appeal in Chela’s case(supra) further stated that :-“In the case of Rwabugande vs Uganda (Criminal Appeal 25 of 2014) [2017] UGSC 8, the court held that “Circumstances from which an inference of malicious intent can be deduced are: (a) The weapon used, (b) the part of the body targeted i.e. whether it is a vulnerable part or not, (c) the manner in which the weapon was used i.e. whether repeatedly or not, or number of injuries inflicted and (d) the conduct of the accused before, during and after the incident i.e. whether there was impunity.”See also Nzuki vs. Republic [1993] KLR 171. 37.The Accused raised the defence of self-defence pursuant to Section 17 of the Penal Code, and impliedly, provocation pursuant to Sections 207 and 208 of the Penal Code, which provisions were considered by the Court of Appeal in Wario vs Respublic (2015) KECA 521 (KLR). Setting out the provisions, the Court expressed itself as follows with regard to provocation:“ 40.In TEI s/o KABAYA V R, [1961] EA the Court held:“In considering whether provocation was sufficient to reduce offence to manslaughter it is material to consider the degree of retaliation as represented by the number of blows and the lethal nature of the weapon used.” (Emphasis added). 38.Regarding self -defence, the court stated:“ 41.The appellant also raises the defence of self-defence: that he acted to defend himself. In ROBERT KINUTHIA MUNGAI V R, [1982-88] 1 KAR 611 the Court stated that excessive use of force in defence of a person or property, whether or not there is an element of provocation present may be sufficient for the Court to regard the offence not as murder but as manslaughter. 42.S. 17 of the Penal Code provides: ….. 43.The Common Law position on the issue of self-defence was recognised by our Courts in AHMED MOHAMMED OMAR & 5 OTHERS V R, CR. NO. 414 of 2012 [2014] eKLR as having been stated in the English case of DPP V MORGAN, [1975] 2 ALL ER 347: that the essential element of self-defence is that the accused believed that he was being attacked or in imminent danger of being attacked but this belief should be based on reasonable grounds. The ground of self-defence also fails, as evidence on record does not bring out that the appellant faced any kind of danger that made him fear for his life’’. 39.In the present case, the evidence shows that the incident arose spontaneously from an altercation between the deceased and the Accused over information the latter had admittedly given to a potential passenger who had already obtained a ticket from the deceased. PW2 conceded during cross-examination that the deceased, upset that the Accused had allegedly interfered with his ticketing business, set off the incident when he confronted the Accused, and shoved him. The altercation apparently escalated rapidly to physical combat, although it appears that the Accused responded with excessive force. The Accused thereafter proceeded to report the matter to the police, perhaps out of self-serving motives; it is evident from his copy of the police abstract that he did not mention to police that he had left his alleged assailant severely injured and lying immobile at the scene of attack. 40.While it may well be that the deceased had wielded a rungu prior to the fight, that the Accused struck the deceased with a stone on the head probably more than once, and may likely have attempted to strangle him in the course of the fight, the surrounding circumstances point to a sudden fight and a reaction in the heat of the moment rather than a calculated intention to kill or cause grievous harm. 41.The decision of the Court of Appeal in Victor Nthiga Kiruthu & Anor. vs Republic (2017) KECA 251 (KLR) offers useful guidance as the Court therein considered at length issues pertinent here and relevant prior pronouncements . This is what the Court stated in that case:“We have given due consideration to the totality of the above. In our view, the issues that fall for our determination are as follows;-(1)Whether the defence of provocation and self defence is available to Victor.(2)Whether the charge against James was proved beyond reasonable doubt.On the first issue, the approach we take is to fully associate ourselves with the principle in Mungai versus Republic [1984] KLR 85, as approved in Joseph Muriuki versus Republic [2016] eKLR, that the defence of self defence is known to law and where it is raised and the circumstances exist to show that the fatal blow was given in the heat of passion on a sudden attack or threat of attack which is serious enough to cause loss of control, then it is merged into provocation and the inference of malice is rebutted and the offence if disclosed will be one of manslaughter.Under Section 208 (1) of the Penal Code, a person is provoked when a wrongful act or insult is done to him;“……..that is likely when done to an ordinary person or in the presence of an ordinary person to another person who is under his immediate care, or to whom he stands in a conjugal, parental, filial or fraternal relation, or in the relation of master or servant, to deprive him of the power of self –control and or induce him to commit an assault of the kind which the person charged committed upon the person by whom the act or insult is done or offered.See also Cheboi versus Republic [2002] 1KLR 790. 42.The Court proceeded to state that :“The above definition was ably explained by the Court of Appeal of England in the case of Republic versus Duffy [1949] 1 ALLER 932 as follows:-“Some act, or series of acts, done by the dead man to the accused which would cause in any reasonable person, and actually causes in the accused, a sudden and temporary loss of self -control, rendering the accused so subject to passion as to make him or her from the moment not master of his or her mind………”In Peter King’ori Mwangi & 2 others versus Republic CR. APP. No. 66 of 2014, the Court identified two conditions as prerequisites for the application of provocation as a defence, namely:“(a)The “subjective” condition that the accused was actually provoked so as to lose his self control; and(b)The “objective” condition that a reasonable man would have been so provoked”The effect of upholding the defence of provocation in favour of an accused person is to reduce the offence of murder to manslaughter. See the case of Tei S/O Kibaya versus Republic [1961] EA 580 as approved in Roba Galma Wario versus Republic [2015] eKLR, thus:-“In considering whether provocation was sufficient to reduce the offence to manslaughter, it is material to consider the degree of retaliation as represented by the number of blows and the lethal nature of the weapon used.” 43.In conclusion, the Court of Appeal observed that:“Turning to the doctrine of self defence, it is provided for under Section 17 of the Penal Code thus:- 17.Subject to any express provision of this code or any other law in operation in Kenya, criminal responsibility for the use of force in the defence of person or property shall be determined according to the principles of English common law”. The section has been ably construed in the cases of Republic versus Andrew Mueche Omwenga (supra); Roba Galma Wario versus Republic (supra) and Ahmed Mohamed Omar & 5 Others versus Republic [2014] eKLR.The principles that have emerged from these and other authorities are as follows:-(i)Self defence, as the term suggests, is defence of self. It is the use of force or threat to use force to defend one self, one’s family or one's property from a real or threatened attack. Self defence is therefore a justification in the application of force recognized by the common law.(ii)The law generally abhors the use of force or violence, but there are instances when a person is justified in using a reasonable amount of force in self defence if he or she believes that the danger of bodily harm is imminent and that force is necessary to repel it, meaning that the force must be necessary and that it must be reasonable.(iii)It is not necessary, however, for there to be an actual attack in progress before the accused may use force in self defence. It is sufficient if he apprehends an attack and uses force to prevent it.(iv)The danger the accused apprehends however must be sufficiently specific or imminent to justify the action he takes and must be of a nature which could not reasonably be met by mere pacific means.(v)What amounts to reasonable force is a matter of fact to be determined from evidence and the circumstances of each case.” 44.The evidence before the court establishes that the purpose of the Accused’s presence at the scene was to have his lunch during which he admittedly gave the information to a prospective passenger thereby causing annoyance to the deceased. Further, prior to the physical combat, there was an altercation after the deceased confronted the Accused for allegedly interfering with his business; that during the altercation, the deceased physically shoved and possibly slapped the Accused while probably armed with a rungu; that the Accused picked up a stone with which he severally struck the deceased on the head and attempted to strangle him, which suggests that the duo were locked in combat within close proximity for some time, during which the Accused sustained tenderness to his neck, while the deceased sustained serious injuries from which he died several days later. 45.As indicated elsewhere, the physical encounter between the two men could not have been the kind of neat exchange of one-off blows described by PW2, the Accused and DW2, but rather a slightly prolonged physical combat. What is apparent is that the initial attack by the deceased was no more than a verbal confrontation, a shove and at worst, a slap. Thus, the Accused’s injuries were negligible in comparison to the injuries admittedly inflicted by him on the deceased. 46.Based on these facts, the court is prepared to accept that a reasonable man in the situation of the Accused would have apprehended danger and been provoked to respond to the attack but not to the vicious extent demonstrated by the injuries sustained by the deceased. While the use of a stone in the face of a possible attack from a rungu-wielding deceased by itself, appears justifiable in the circumstances for purposes of repelling the attack, the repeated striking of the deceased’s head with the stone resulting in severe multiple head injuries causing internal bleeding, and the attempted strangulation of the deceased, probably resulting in the fracture to the upper spinal column, all appear excessive and unjustifiable. More so because, on all accounts, the deceased had already been disarmed and subdued as the tussle proceeded, which explains the very minor injury sustained by the Accused himself. 47.In the recent case of Barisa vs. Republic (2024) KECA 219(KLR) the Court of Appeal while considering the defence of provocation, hence self defence, as raised by the appellant at his trial stated:“The appellant has asserted that this was a case of provocation by the adverse party hence the applicability of the defence of self-defence and or provocation. That there was imminent danger of being attacked by the deceased and other villagers hence their decision to react in that manner was therefore justified. The defence of self-defence is provided for in Section 17 of the Penal Code which provides, inter alia:“Subject to any express provisions in this Code or any other law in operation in Kenya, criminal responsibility for the use of force in the defence of person or property shall be determined according to the principles of English Common Law.” 48.Regarding the common law principles the Court of Appeal stated:“The said common law principles were spelt out in the case of Palmer vs. Republic [1971] AC 814 in which it was held:“It is both good law and good sense that a man who is attacked may defend himself. It is both good law and common sense that he may do, but only do, what is reasonably necessary. But everything will depend upon particular facts and circumstances. Some attacks may be serious and dangerous, others may not be. If there is some relatively minor attack, it would not be common sense to permit some act of retaliation which was wholly out of proportion to the necessities of the situation. If an attack is serious so that it puts someone in immediate peril, then a mediate defensive action may be necessary. If the moment is out of crisis for someone in immediate danger, he may have to avert the danger by some instant reaction. If the attack is over and no sort of peril remains, then the employment of force may be a way of revenge or punishment or by way of paying off an old score or may be pure aggression. That may be no longer any link with a necessity of disproved, in which case as a defence it is rejected. In a homicide case this circumstances may be such that it will become an issue as to whether there was provocation so that the verdict might be out of manslaughter. Any other possible issues will remain. If in any case the view is possible that the intent necessary to constitute the crime of murder was lacking then the matter would be left to the jury.” 49.The Court further expressed the following view:“This Court in the case of Mokwa vs. Republic [1976–80] 1 KLR 1337, held that:“Self-defence is an absolute defence even on a charge of murder unless in the circumstances of the case the accused applied excessive force.”In the case of Mungai vs. Republic [1984] KLR 85, the same Court held:“It is a doctrine recognized in East Africa that the excessive use of force in the defence of the person or property, whether or not there is an element of provocation present, may be sufficient for the court to regard the offence not as murder but as manslaughter – R vs. Ngolaile s/o Lenjaro (1951) 18 EACA 164; R vs. Shaushi (1951) 18 EACA 198’’. 50.The Court of Appeal concluded by stating that:“While there is no rule that excessive force in defence of the person will in all cases lead to a verdict of manslaughter, there are nevertheless instances where that result is a proper one in the circumstances and on the facts of the case being considered – Palmer vs. Reginam [1971] 1 ALL ER 1077.” 51.Applying the foregoing logic to this case, the Court takes the following view. That while accepting, on the facts, that the deceased was the aggressor in the fight that ended tragically for him, and that the inference of malice aforethought was on these facts rebutted, nevertheless in the court’s considered view, the force used by the Accused in the circumstances of this case was excessive and disproportionate. Thus, the combined defences of self-defence and provocation are only partially available to the Accused. 52.Consequently, the court finds that the evidence before it discloses beyond reasonable doubt the offence of Manslaughter contrary to Section 202 as read with Section 205 of the Penal Code against the Accused. The court therefore finds him guilty and convicts him accordingly. DELIVERED AND SIGNED ELECTRONICALLY ON THIS 16TH DAY OF JULY 2026C.MEOLIJUDGEIn the presence of:For the State: Ms. KihumbaFor the Accused: Ms. MagetoAccused: PresentC/A: Lepatei