https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9352

Republic v Nduati (Criminal Case E034 of 2021) [2026] KEHC 9352 (KLR) (30 June 2026) (Judgment) Neutral citation: [2026] KEHC 9352 (KLR) Republic of Kenya In the High Court at Kiambu Criminal Case E034 of 2021 FR Olel, J June 30, 2026 Between Republic Prosecutor and Simon Kamau Nduati Accused Judgment A. Introduction 1.The accused person was charged with the offence of murder contrary to section 203 as read with section 204 of the Penal Code (Cap 63) of the Laws of Kenya. The particulars of the offence were that on 16th day of May 2021 at Magomano area, within Juja Sub County within Kiambu County he did murder one Stephen Musyoka Maweu. He denied the charge faced and pleaded not guilty. The case proceeded to full trial with the prosecution calling eight (8) witnesses in support of their case. (b). Prosecution Case 2.PW1 Micheal Irungu recalled that on 16.05.2021 at about 12.00 noon, he was at home and it had just stopped raining, when he decided to go to the shamba to check on his crops. While there, he heard screams from a neighbor shouting, “ Wakamau, wakamau” severally at it arose his curiosity and he rushed to his neighbours’ home to check on what the issue was. On arrival he found that it was PW2, the deceased wife, who was screaming for help, while the deceased was lying on the ground and had been stabbed severally on his back and was bleeding profusely. He also saw the accused seated by the deceased gate. 3.Other neighbours’ attracted by PW2’s scream for help also joined him and PW2 informed them that, it was the accused person who had stabbed the deceased unprovoked. They joined hands to carry the deceased to his compound, since he had a car, and rushed him to Kenyatta University referral hospital, where unfortunately, he was pronounced dead on arrival. Once back in the village, they joined hands to search for the accused person and did not find him that night, but on the following day at about 2.00pm, he reappeared and was subjected to mob justice, but as elders, they intervened and called the police. 4.Further upon being interrogated, the accused lead the police to a sisal plantation where he had hidden the knife used to stab the deceased and it was recovered. Under cross examination PW1 confirmed that at the time of arrested the accused person looked disturbed and his behavior looked a bit unnormal. 5.PW2 Mercy Mawia, confirmed that on the material day she was at home with her husband (the deceased) and her 7-month-old child and at about noon her husband took farming tools to go work within their shamba. After about 10 mins she heard her husband desperately calling for her and rushed to check on what the issue was. To her shock, she found the accused person seated on her husband and was stabbing him severally on his back. She screamed for help and the accused person stood and initially went and sat on a stone by the gate, before he eventually ran away. 6.Neighbours, including PW1 came to assist her and they managed to rush the deceased to Kenyatta university referral hospital, but unfortunately little could be done as he was pronounced dead on arrival. PW2 further affirmed that she knew the accused very well and reaffirmed that he was the culprit who stabbed her husband unprovoked. Later she was surprised to received SMS test messages from the accused person, while in prison apologizing for the crime he committed and he further confessed that he was in love with her and that is why he killed the deceased. PW2 also clarified that before the incident, the accused person had never approached her. She had also attended the post mortem examination and the doctor did confirm to them that the deceased had died due to internal bleeding caused by the knife wound injuries. 7.Under cross examination, she confirmed that the accused person was their neighbour and in her opinion was a normal and sober person, who had a habit of sitting on their sand, outside their gate for long period of time. He was also a quiet character and did not talk much. She reiterated that she found the accused person red handed, seated on the deceased and was stabbing him on the back and only took off due to her screams for help. 8.PW3 Ann Wangui Kimani confirmed that she knew the accused person and was married to his uncle, while the deceased was their neighbour. On the material afternoon, she was working at their shamba, assisted by her son Kamau (PW4), when PW2 came running and sought for their help as her husband had been stabbed. They dashed to her home and carried the deceased to PW1’s car and he was rushed to hospital. She confirmed that she did not see the accused person at the scene of crime. Under cross examination she confirmed that she had known the accused person from childhood and had not seen him abusing drugs. 9.PW4 James kamau Kimani, corroborated the evidence of his mother (PW3) that they were amongst the first responders to the incident and PW2 had told them that the accused person had been stabbed her husband, who was bleeding profusely and had three stab wounds on his back. They managed to rush him to Kenyatta University referral hospital, but unfortunately was pronounced dead at the emergency room. Later that night they mobilized as a group of youth and searched for the accused person, who they flashed out of his hiding place at the lower end of their shamba and effected public arrested before he was rescued by the police, who also documented the scene of crime and the accused lead them back to the shamba where they recovered the knife used to stab the deceased. 10.PW5 Dr Johansen Odour confirmed that he performed the autopsy on the deceased body at Kenyatta university referral hospital on 18.05.2021 and established that he had been stabbed four times. Specifically, he had been stabbed on the right side of the chest just below the 6th rib (2cm long), right upper back below the 4th rib (1cm long), mid back below the 7th rib (1cm long), and on the right back below the 10th rib (2cm long). As a result, the deceased right lung had collapsed, and his diaphragm and spleen too were torn. He suffered massive internal bleeding and he formed an opinion that the cause of death was due to multiple injury caused by sharp penetrating trauma. He produced the post mortem report dated 18.05.2021 as Exhibit 1. 11.PW6 Inspector James Wanjohi Ndegwa, testified that he was previously attached to Gashara police post performing general duties and on 15.05.2021 at about 10.00hrs was directed by his OCS to go and rearrested the accused who had been apprehended by members of the public at Theta area on suspicion of having committed a murder. Together with his colleagues, they went to the said scene and found the accused, whose hands had been tied with a rope and upon interrogation, he led them into a Sisal plantation, where they managed to recover the murder weapon. He further confirmed that when they arrested the accused, he was not coherent and looked intoxicated. 12.PW7 Inspector Peter Kabiru testified that on 16.05.2021 at about 1500hrs, he was on standby duties at DCI Juja police station, when he they got information of the murder incident. They rushed to the hospital to see the victim and found that he had passed on and thereafter went to the scene of crime. On the following day the accused person was arrested and the knife recovered from where it was hidden. He took witness statements and established that it was the accused who had stabbed the deceased and upon completion of his investigations, charged him with the offence he faced before the court. He further confirmed that the deceased looked disturbed on arrest but was unremorseful. 13.PW8 Hendry Sang Kiptoo, confirmed that he worked at government laboratory and had 15 years’ experience in his line of work. On 26.05.2021, he received from Cpl Paul Nangiro of DCI Juja, a police exhibit memo form, the deceased blood sample and a knife placed in a khaki envelope and was requested to undertake a DNA analysis of the same. Upon conclusion of the said process, it was established that the blood on the knife though of human origin was not that of the deceased. 14.The prosecution closed their case at this point, and the accused was placed on his defence and opted to given sworn evidence. (c). Defence Case 15.The accused stated that on the material day he was at Juja-Ndegasha and in the evening at about 7.30pm when enroute home met his parents, who told him that members of the public were baying for his blood, and though he did not understand what was going on, decided to keep off until the following day, when he came back and was arrested by members of the public and the police were called to rearrest him. He denied injuring or murdering the deceased and urged the court to acquit him. 16.Under cross examination he confirmed that the deceased was their immediate neighbour and insisted that on the material day he did not recall seeing PW2 and/or the deceased. He reiterated that he did not have any grudge against the deceased and had nothing to do with his death. (d) Determination 17.I have considered the evidence adduced by both parties and submissions on record, and the question that arises before this court is whether the prosecution has proved beyond reasonable doubt that the accused person herein murdered Stephen Musyoka Maweu, the deceased herein. 18.Section 203 of the Penal Code defines the offence of murder as follows:“Any person who of malice aforethought causes death of another person by an unlawful act or omission is guilty of murder.” 19.In Joseph Kimani Njau vs Republic (2014) eKLR, the Court of Appeal in concurring with an earlier finding of that Court (but differently constituted) in Nzuki vs Republic (1993) KLR 171, held as follows: -Before an act can be murder, it must be aimed at someone and in addition, it must be an act committed with one of the following intentions, the test of which is always subjective to the actual accused; -i.The intention to cause death;ii.The intention to cause grievous bodily harm;iii.Where the accused knows that there is a serious risk that death or grievous bodily harm will ensue from his acts, and commits those acts deliberately and without lawful excuse with the intention to expose a potential victim to that risk as the result of those acts.It does not matter in such circumstances whether the accused desires those consequences to ensue or not in none of these cases does it matter that the act and intention were aimed at a potential victim other than the one succumbed The mere fact that the accused’s conduct is done in the knowledge that grievous harm is likely or highly likely to ensue from his conduct is not by itself enough to convert a homicide into a crime of murder. (See Hyman vs. Director of Public Prosecutions (1975) AC 55”. 20.The Court of Appeal at Nyeri in Criminal Appeal No. 352 of 2012 Anthony Ndegwa Ngari vs. Republic [2014] eKLR, also summed up the elements of the offence of murder as follows: -a.the death of the deceased and its cause;b.that the accused committed the unlawful act which caused the death of the deceased; andc.that the accused had malice aforethought. 21.I will now proceed to interrogate each issue. i. The death of the deceased and its cause. 22.It is common ground that Stephen Musyoka Maweu died on 16.05.2021 and this was confirmed by all the witnesses. Dr. Johannsen Odour (PW 8), the pathologist who conducted the postmortem on 18.05.2021 described in detail the extensive injuries sustained by the deceased and formed an opinion that the cause of death was due to multiple injury caused by sharp penetrating trauma. He produced the post mortem report as Exhibit 1. 23.. This court therefore finds as a fact that the deceased died as a result of the said extensive injuries as enumerated in paragraph 9 above. ii. Whether it has been proved that the accused committed the unlawful act which caused the death of the deceased: 24.PW2 found the accused person literally seated on the back of the deceased and literally saw him stab the deceased severally on his back. It was her screams for help, which made him ran away. This incident occurred in broad daylight and the accused person was well known to PW2 as they were neighbours. While in remand the accused person also called and texted PW2 and confessed to being in love with her and apologized for what he had done. PW1 was also the first to respond to PW2 screams for help and saw the accused standing by the gate before he took off. 25.In defence, the accused person denied committing the offence and stated that on the material day, he spent the whole day at Juja-Ndegasha an did not have a grudge against the deceased and/or did not stab him. Obviously, the defence offered is lame in light of the direct incriminating evidence presented and therefore, I do find that it was proved beyond reasonable doubt that it was the accused person, who unlawfully stabbed his neighbour and caused his death. (iii) Malice Aforethought 26.Having found that the prosecution has proved actus reus, the other issue for determination is whether malice aforethought can be inferred from the prosecution's evidence presented. The offence of murder is complete when “malice aforethought” is established. Section 206 of the Penal Code, provides that:“(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.” 27.In assessing the weight to be given to intention as an element of murder, the relevant circumstances must be considered as to whether the appellant foresaw the real or substantial risk and the consequences of targeting the part of the body that may result in the fatal injuries suffered by the deceased. A similar statement of Law was made in the persuasive authority of S. vs. Sigwahla 1967 4 SA 566 in which the court stated:“The expression intention to kill does not in Law, necessarily require that the accused should have applied his will to compassing the death of the deceased. It is sufficient if the accused subjectively foresaw the possibility of his act causing death and was reckless of such a result. This form of intention is known as a dolus eventualis as distinct from dolus directus.” 28.The accused inflicted four penetrating knife wound injuries on the deceased back and chest and definitely knew or ought to have known that the same would be fatal. PW1 also did testify that when the accused was in remand prison, he called her using an unknown phone number and express remorse for the incident that had occurred. He further did SMS her through the same phone number and openly admitted to being in love with her and confessed it to be the reason why he killed the deceased. She was shocked by this confession, since she never used to talk with the accused person and she thereafter blocked him. 29.When the accused was charged before court, he was declared unfit to take plea and was directed to undergo medical/psychiatric treatment. The question that comes to mind at this stage is whether the accused person was sane and/or insane at the time of committing the offence. 30.Section 11 and 12 of the Penal Code provides that:11.Presumption of sanityEvery person is presumed to be of sound mind, and to have been of sound mind at any time which comes in question, until the contrary is proved.12.InsanityA person is not criminally responsible for an act or omission if at all at the time of doing the act or making the omission, he is through any disease affecting his mind incapable of understanding what is he is doing, or of knowing that he ought not to do the act or make the omission but a person may be criminally responsible for an act or omission, although his mind is affected by disease, if such disease does not in fact produce upon his mind one or other of the effects above mentioned or reference to that act or omission. 31.Finally, on the applicable law, Section 9 of the Penal Code too provides that:-“9(1) Subject to the express provisions of this Code relating to negligent acts and omissions, a person is not criminally responsible for an act or omission which occurs independently of the exercise of his will, or for an event which occurs by accident.” 32.The courts reiterate that the above provisions form the basis of the generally accepted notion that persons who cannot appreciate the consequences of their actions should not be punished if those actions happen to be criminal acts. In Ellis vs. Republic [1965] EA 744 at 791 it was held that whether a defence of insanity is proved is a question of fact. 33.Similarly on the same issue, the court of Appeal in the case of Wakesho Vrs Republic (criminal Appeal No 8 of 2016) (2021) KECA 223(KLR) stated that;“The critical point at which the mental state of the accused person was relevant for purposes of the defence of insanity was at the time of the commission of the act complained of. If the appellant was suffering from a disease which affected his mind and made him incapable of understanding what he was doing or knowing that what he was doing was wrong at the time of the commission of the offence of murder, then he was not responsible for his actions.” 34.The accused person failed to raise the defence of being insane at the time of commission of the said offence and did not lead any evidence to that effect. During trial PW1, PW6 and PW7 stated that the accused looked disturbed, but PW2 and PW3 stated that the accused was normal but a withdrawn person. In the absence of specific evidence relating to his state of mind at the time of commission of the offence, and due to his subsequent phone calls and text to PW2, I do find and hold that the prosecution specifically established the presence of malice aforethought on the part of the accused person. E. Disposition 35.Accordingly, it is my finding and holding that the prosecution has proved all the ingredients of the Information of murder against the subject herein, Simon Kamau Nduati Beyond reasonable doubt and convicted him accordingly under section 215 of the Criminal Procedure Code. 35.Sentencing will await the filing of a pre-sentence report by the probation and aftercare services department, within the next 21 days. 35.It is so Ordered. JUDGMENT, SIGNED AT KIAMBU THIS ……30TH ...DAY OF JUNE 2026.FRANCIS RAYOLA OLELJUDGEJudgment read and delivered in open court on this………30th ………..… day of JUNE 2026.In the presence of:-……………………………………..Accused………………………………….For O.D.P.P………………………………….Court Assistant