https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12523

REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT MOMBASA COUNTY COURT NAME: MOMBASA HIGH COURT CASE NUMBER: HCCRC/E020/2020 THE REPUBLIC VS MATANO MASHUNGI MWANGO NYALE JUDGMENT 1. The accused person, Matano Mashungi Mwango Nyale, was charged with the offence of murder contrary to Section 203 as read with Section 204 of the Penal Code. The particulars of the charge were that on 6th December 2020, at Vipingo Sub-location within Kilifi County, jointly with others not before the Court, he murdered Bahati Charo Mwambegu. 2. The accused person pleaded not guilty to the charge. Consequently, the prosecution assumed the legal burden of proving all the essential ingredients of the offence of murder beyond reasonable doubt. 3. In support of its case, the prosecution, led by Mr. Ngiri, called seven witnesses who were cross-examined by learned counsel for the accused, Ms. Maiga. The evidence presented by the prosecution is summarised as follows. 4. PW1, Neema Wanje Ngala, testified that she sold palm wine. On the material day, she served two customers who consumed palm wine at her premises. After they finished drinking, she escorted them, but her employer later called her back. Upon returning, she found the accused person and another customer engaged in an argument. 5. PW1 testified that before she went home, she saw the accused person The Judiciary of Kenya Doc IDENTITY: 10790072847089718776325164515 Tracking Number:OOCGVU2026 1/10 running away after the other customer had assaulted him. The accused person later followed her towards her home. Along the way, she encountered the accused person and the same customer. She stated that the accused person then assaulted the customer and fled. 6. PW1 further testified that when she looked at the customer who had been assaulted, she noticed that he was holding his neck and bleeding. Members of the public gathered at the scene and assisted in taking him to hospital. 7. PW2, Harrison Mwambao, testified that on 5th December 2020 at about 6.00 p.m., he was at a palm wine den where he met the accused person, the deceased, and other patrons. He stated that the accused person later engaged in an altercation with the deceased, during which the accused person produced a knife and stabbed him. PW2 testified that after being stabbed, 8. the deceased shouted, “Mshikeni huyo ameniua” (“Arrest that person; he has killed me”). He stated that he knew the accused person for about one month and had known the deceased since childhood. He further testified that PW1 was the accused person’s wife and that there was no relationship between PW1 and the deceased. 9. PW3, Zawadi Rimba Thenje, testified that she had operated a palm wine business for approximately three years. She stated that on 5th December 2020 at about 2.00 a.m., the deceased woke her up seeking assistance. Upon going outside, she found him standing but bleeding. PW3 testified that the deceased requested her to call his mother. She 10. advised him to seek assistance from a boda boda rider. The deceased was subsequently taken to Vipingo Hospital, where he died while undergoing treatment. 11. PW3 further testified that she went to the police station, where she found the deceased’s relatives. She stated that the accused person was arrested and led the police to the place where he had left the knife. She was present when the accused person was interrogated and saw the knife recovered. She described it as being approximately the size of a nail cutter. She admitted, however, that she was asleep when the incident occurred. 12. PW4, Maulidi Charo Mwambenga, testified that on 5th December 2020, while at his construction site, he received information from his brother Kahindi Charo that their elder brother, Bahati Charo, had been stabbed. He proceeded to the scene and later to the hospital, where he confirmed that his brother had died while receiving treatment. The Judiciary of Kenya Doc IDENTITY: 10790072847089718776325164515 Tracking Number:OOCGVU2026 2/10 13. PW4 testified that he accompanied police officers to the scene of the incident and later proceeded to the home of July Genga, who led them to the accused person’s residence. The accused person was arrested and his penknife was recovered. PW5, Julius Genga Kombe, testified that the accused person was his 14. nephew. He stated that on 5th December 2020, he spent time with the accused person before leaving him at about 8.00 p.m. after supper. 15. PW5 testified that the accused person returned at about 10.00 p.m. and informed him that he had been assaulted by some people. The accused person requested him to accompany him to the scene where the assault had occurred. They went there but did not find the alleged assailants. PW5 advised him to go home and indicated that they would follow up the matter the following day. PW5 stated that at about 1.30 a.m., the accused person returned and 16. informed him that the person who had assaulted him had gone to his house and attacked him again. PW5 accompanied him to the scene, where they encountered the deceased. PW5 testified that the accused person produced a knife and stabbed the deceased. PW5 further testified that the accused person had a girlfriend who had 17. agreed to leave with the deceased. He stated that he called a boda boda rider who transported the deceased to hospital, but the deceased died upon arrival. He also stated that the accused person was not intoxicated at the time of the incident. PW6, Dr Ruth Nyangi Walumbe, produced the post-mortem report in 18. respect of the deceased. She testified that the examination was conducted on 7th December 2020 at Kilifi County Hospital. She concluded that the cause of death was a stab wound caused by a sharp object, which severed the trachea and resulted in asphyxia. The post-mortem report was produced as Prosecution Exhibit No. 3. 19. During the pendency of the trial, the matter was transferred and I took over conduct of the proceedings. On 25th June 2024, the Court complied with the requirements of Section 200 of the Criminal Procedure Code. The accused person, through his advocate Mr. Lijoodi, elected that some of the witnesses who had testified be recalled for further cross-examination. 20. PW7, Police Constable Sammy Oyaro from the DCI, testified that on 6th December 2020, they received a report from Nicholas Kisuwi, a nurse at Vipingo Health Centre, that a person had been brought to the facility with a stab wound on the neck and had died. The Judiciary of Kenya Doc IDENTITY: 10790072847089718776325164515 Tracking Number:OOCGVU2026 3/10 21. PW7 testified that police officers visited the hospital and confirmed the presence of the deceased’s body, which had a stab wound. Investigations led them to the accused person, who was arrested. A penknife was recovered, and an inventory, sketch plan, and photographs were prepared and produced as exhibits. 22. At the close of the prosecution case, the Court found that the accused person had a case to answer and placed him on his defence pursuant to Sections 306 and 307 of the Criminal Procedure Code. In his defence, the accused person elected to give sworn testimony. He 23. stated that he was married and had seven children. He testified that Neema (PW1) was also his wife, having rented a house for her at Kikambala. He stated that he did not know the deceased. 24. The accused testified that on the material night, he went outside to relieve himself when a person approached him from behind, grabbed him by the shoulder, and questioned him regarding his association with Neema. He stated that the person then started assaulting him, forcing him to run away. 25. The accused person testified that he later went and called his uncle, Julius Genga Kombe (PW5), and together they returned to the palm wine den. According to him, the deceased approached him and questioned why he had returned. He stated that the deceased assaulted him again and suddenly began shouting, “Ananiua” (“He is killing me”). 26. The accused person stated that he left the scene thereafter. He denied stabbing the deceased and stated that he was unaware of the knife recovered by the police. He maintained that the knife did not belong to him. 27. On cross-examination, the accused confirmed that his wife was Santa Chanduli, with whom he had seven children. He stated that he knew Julius Genga Kombe well and that Julius could not have mistaken his identity. He admitted that PW2 and PW5 were present at the scene during the incident. 28. Having considered the evidence presented by both the prosecution and the defence, the singular issue for determination is whether the prosecution discharged its legal burden of proving the charge of murder against the accused person beyond reasonable doubt. Analysis and Determination 29. The accused person faces a charge of murder contrary to Section 203 of the Penal Code, which provides as follows: The Judiciary of Kenya Doc IDENTITY: 10790072847089718776325164515 Tracking Number:OOCGVU2026 4/10 “Any person who, of malice aforethought, causes the death of another person by an unlawful act or omission is guilty of murder.” 30. The standard of proof required in criminal proceedings was established in the celebrated case of Woolmington v Director of Public Prosecutions [1935] AC 462, where the court affirmed the fundamental principle that the burden of proving the guilt of an accused person rests upon the prosecution throughout the trial. 31. Similarly, in Bakare v State (1985) 2 NWLR, Lord Oputa stated that proof beyond reasonable doubt arises from the presumption of innocence inherent in criminal justice systems. The prosecution evidence must therefore be such that it leaves no reasonable doubt regarding the guilt of the accused person. The burden of proof remains with the prosecution at all times. This 32. constitutional guarantee is entrenched under Article 50(2)(a) of the Constitution of Kenya, which provides that every accused person has the right to be presumed innocent until proven guilty according to law. 33. The essential ingredients of the offence of murder which the prosecution must prove beyond reasonable doubt are the actus reus (the unlawful act causing death) and mens rea (the intention or guilty mind). 34. In Joseph Kimani Njau v Republic [2014] eKLR, the Court of Appeal held that both the actus reus and mens rea must be established by the prosecution beyond reasonable doubt before a conviction for a criminal offence can properly be entered. 35. Further, in Anthony Ndegwa Ngari v Republic [2014] eKLR, the Court of Appeal identified the three elements that must be proved in a charge of murder as follows: (a) The death of the deceased and the cause of that death; (b) That the accused person committed the unlawful act which caused the death of the deceased; and (c) That the accused person had malice aforethought. 36. I shall therefore consider each of these ingredients separately. (a) Proof of Death and Cause of Death 37. The fact of death and the cause thereof were not disputed in this case. The prosecution produced the post-mortem report prepared by Dr Ruth Nyangi Walumbe, who testified that the cause of death was a stab wound The Judiciary of Kenya Doc IDENTITY: 10790072847089718776325164515 Tracking Number:OOCGVU2026 5/10 caused by a sharp object which severed the trachea, resulting in asphyxia. 38. This medical evidence was corroborated by the testimonies of PW1, PW2, PW3, PW4 and PW5, who all confirmed that the deceased sustained a stab injury and subsequently died. I therefore find that the prosecution proved beyond reasonable doubt the 39. fact of death and the cause thereof. (b) Whether the Death was Caused by an Unlawful Act and Whether the Accused Person was the Perpetrator 40. The law presumes every homicide to be unlawful unless it is shown to have been authorised by law or excused by circumstances recognised in law. In Sharm Pal Singh [1962] EA 13, and Guzambizi Wesonga v Republic [1948] 15 EACA 63, the courts held that every homicide is presumed unlawful unless circumstances such as self-defence or defence of property render it excusable. 41. In the present case, the evidence of the pathologist established that the deceased died from a stab wound inflicted by a sharp object. The death was therefore unnatural and, in the absence of lawful justification, unlawful. 42. The critical issue for determination under this head is whether the prosecution proved beyond reasonable doubt that the accused person was the person who inflicted the fatal injury. The accused person admitted that he was at the scene and that he 43. returned there with PW5, Julius Genga Kombe. He also admitted that PW1, PW2 and PW5 were present when the confrontation occurred. His defence was that he was attacked by the deceased and that he did not stab him. 44. PW1 testified that after the accused person returned to the scene, he identified the deceased as the person who had assaulted him. She stated that the accused person then attacked the deceased and fled. She subsequently saw the deceased holding his neck and bleeding. PW2, Harrison Mwambao, gave direct evidence of the incident. He 45. testified that when the accused person returned with his uncle, Julius, he pointed out the deceased as the person who had assaulted him. Before Julius could intervene, the accused person removed a knife and stabbed the deceased while he was seated. PW2 stated that there was sufficient lighting at the scene and that he witnessed the stabbing. 46. This evidence was corroborated by PW5, Julius Genga Kombe, who was the The Judiciary of Kenya Doc IDENTITY: 10790072847089718776325164515 Tracking Number:OOCGVU2026 6/10 accused person’s own uncle. PW5 testified that after the accused person The Judiciary of Kenya Doc IDENTITY: 10790072847089718776325164515 Tracking Number:OOCGVU2026 7/10 returned and requested him to accompany him to the scene, they found the deceased. He stated that before any discussion could take place, the accused person produced a knife and stabbed the deceased. 47. The testimony of PW5 is particularly significant because he was a relative of the accused person and had no apparent reason to falsely implicate him. His evidence independently corroborated the testimonies of PW1 and PW2. 48. The accused person denied ownership of the knife recovered by police. However, the prosecution evidence established that the accused person led the police to the place where the knife was recovered. The mere denial of ownership does not displace the consistent and corroborated evidence placing him at the scene and identifying him as the person who inflicted the fatal injury. 49. Having considered the totality of the evidence, I find that the prosecution proved beyond reasonable doubt that the deceased died as a result of an unlawful act committed by the accused person. PART III: Edited Judgment (Malice Aforethought, Final Determination, Conviction and Orders) (c) Proof that the Accused Person had Malice Aforethought 50. The final ingredient that the prosecution must prove in a charge of murder is malice aforethought. Section 206 of the Penal Code defines malice aforethought and provides that it shall be deemed to be established by evidence proving any of the following circumstances: (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, accompanied by indifference as to whether death or grievous harm occurs; (c) An intent to commit a felony; or (d) An intention to facilitate the escape from custody of a person who has committed a felony. 51. The test for determining whether malice aforethought exists was stated in Rex v Tubere s/o Ochen [1945] 12 EACA 63, where the Court held that in determining the existence or otherwise of malice aforethought, the court must consider the weapon used, the manner in which it was used, and the part of the body targeted. 52. Similarly, in Hyam v Director of Public Prosecutions [1974] AC, the court The Judiciary of Kenya Doc IDENTITY: 10790072847089718776325164515 Tracking Number:OOCGVU2026 8/10 held that malice aforethought may be established where an accused person knew that his or her actions would probably result in death or grievous bodily harm. 53. Further, in Ernest Asami Bwire Abanga alias Onyango v Republic (Criminal Appeal No. 32 of 1990), the Court recognised that intention may be inferred from the circumstances surrounding the commission of the offence, including the nature of the attack and the consequences of the unlawful act. 54. In the present case, the evidence demonstrates that the accused person had formed the requisite intention at the time he inflicted the fatal injury. The deceased was stabbed on the neck using a sharp object, causing a wound that severed the trachea and resulted in asphyxia. 55. The nature of the injury inflicted, the part of the body targeted, and the weapon used clearly demonstrate that the accused person either intended to cause death or grievous harm or knew that his actions would probably result in death. 56. The circumstances preceding the attack are also relevant. The evidence of PW5 established that after the initial confrontation, the accused person left the scene. He later returned at approximately 1.30 a.m. and requested PW5 to accompany him back to the palm wine den. Upon arrival, and before any meaningful discussion could take place, the accused person drew a knife and stabbed the deceased. 57. The accused person’s return to the scene after leaving, accompanied by a knife, is significant. It demonstrates that the fatal attack was not a spontaneous reaction arising from an immediate threat but rather a deliberate act carried out after an opportunity for reflection. The defence advanced by the accused person was that he had been 58. attacked by the deceased and that he acted in self-preservation. However, the evidence does not support this contention. The accused person left the scene after the initial confrontation, returned later with PW5, and immediately attacked the deceased. There was no evidence of an imminent threat to justify the use of such force. 59. The evidence of PW1, PW2 and PW5, who witnessed the incident, consistently established that the accused person was the aggressor. Their testimonies were mutually corroborative and were not displaced by the accused person’s defence. 60. I therefore find that the prosecution proved beyond reasonable doubt that The Judiciary of Kenya Doc IDENTITY: 10790072847089718776325164515 Tracking Number:OOCGVU2026 9/10 the accused person acted with malice aforethought when he caused the death of the deceased. Final Determination 61. Having considered the evidence as a whole, I find that the prosecution has proved beyond reasonable doubt all the ingredients of the offence of murder contrary to Section 203 of the Penal Code. 62. The deceased died as a result of an unlawful act. The unlawful act was committed by the accused person, and the circumstances surrounding the attack demonstrate the presence of malice aforethought as contemplated under Section 206 of the Penal Code. 63. The accused person’s defence was considered but does not raise a reasonable doubt in the prosecution case. The evidence against him was direct, consistent, and corroborated by independent witnesses, including his own relative, PW5. 64. The prosecution has therefore discharged the burden placed upon it by law. 65. Consequently, the accused person, Matano Mashungi Mwango Nyale, is hereby found guilty and convicted of the offence of murder contrary to Section 203 as read with Section 204 of the Penal Code. He is accordingly convicted under section 322 of the Criminal Procedure Code. 66. It is so ordered. DATED, SIGNED AND DELIVERED VIRTUALLY AT MOMBASA THIS 24TH DAY OF JUlY 2026. WENDY KAGENDO JUDGE In the presence of: The Accused Person Mr. Lijoodi – Advocate for the Accused Person Mr. Sirima – Counsel for the State Ms. Bebora – Court Assistant The Judiciary of Kenya Doc IDENTITY: 10790072847089718776325164515 Tracking Number:OOCGVU2026 10/10 SIGNED BY/FOR: □ TH E J U D I C I A R Y O F K E N Y A ★ HON. LADY JUSTICE WENDY MICHENI Mombasa High Court High Court Criminal Date: 2026-07-27 14:28:13 The Judiciary of Kenya Doc IDENTITY: 10790072847089718776325164515 Tracking Number:OOCGVU2026 11/10