https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9392

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT KIAMBU** **CRIMINAL CASE NO. 4 OF 2020** **REPUBLIC……………………………….………………..……PROSECUTOR** **VERSUS** **KENNEDY NJOROGE RAGA………………………....………. ACCUSED** **JUDGMENT** 1. **INTRODUCTION** 2. 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 or about the night of 1st day of February, 2020 at Miiri area in Gatundu - North Sub County within Kiambu County, he murdered **JOSEPH MIGWI GATHAGU.** 3. The accused person was arraigned before court and took plea on 17th February 2020. He denied the charge faced and pleaded not guilty. The case proceeded to full trial with the prosecution calling ten (10) witnesses in support of their case. **(B)** **PROSECUTION CASE** 1. PW1 Peter Kimani Karanja recalled that on 01.02.2020, he was, within their neighborhood, where they had attended a dowry (ruracio) ceremony for Mr. Peter Mwangi Gitau’s daughter and left the said home at about 5.00pm headed to the local pub (Kwa Wamboi), where they continued to drink Muratina. While at the said pub, the deceased and the accused started to fight and had to be separated. Later at about 6.00pm, while on his way home, he again met them fighting by the road side and noticed the deceased was bleeding from his nose, mouth and ears. He opted to assist the deceased and as he walked him home, he told him that it was the accused who had assaulted him. 2. The deceased became dizzy and was unable to walk. He sought for help and they rushed the deceased to Igegania level 4 hospital, where unfortunately he was pronounced dead on arrival and the doctor asked them to inform the area chief and the police. He further clarified that the deceased had told him that the accused had hit him with a blunt object on his head, and that is what caused him to suffer the injuries sustained. He had also observed that the accused had sustained bruises from the said fight. 3. Under cross examination he reaffirmed that the two first fought at “kwa wamboi” and after they had been separated continued with their fight outside along the murrum road. He confirmed that he did not see the accused holding any weapon, but was also certain that the injuries sustained were not as a result of a fall and that the deceased had told him that, “***Njoroge amenigonga***.” 4. PW2 Elias Njuguna Kiguro, confirmed that he was the area chief of Njahi location and recalled that on the material day at about 5.00pm, he did get a call from Mzee David Karanja, who informed him that the accused and the deceased had fought at a dowry ceremony and as a result the deceased had sustained serious injury. He called the OCS, Kamwangi police station and relayed the said information and before they could act, he again received information that “***Migwi Joseph***” had unfortunately passed on. He rushed to the scene and found that the accused had been tied up and arrested by members of the public and he rearrested him and took him to the police station. 5. PW3 Paul Nguru Mwangi confirmed that the accused was his cousin, while the deceased was his uncle. On the material evening as he was cutting Napier grass for their cows, when he heard screams emanating from the road and out of curiosity went to check on what was happening. He found that the accused had been arrested, placed on PW2’s car and was being escorted to Kamwangi Police station. (At that point PW3 was stood down to enable him refresh himself with his statement recorded with the police and was not recalled.) 6. PW4 Peter Kimani Gathagu, testified and stated that the deceased was his younger brother, and the accused was their immediate neighbour at home. He confirmed that he did not attend the dowry ceremony, but was later in the evening called and told that his brother had been injured and that he need to rush and take him to the hospital. He found the deceased lying unconscious by the roadside near the dowry venue and they rushed him to Igegania level 4 hospital using PW5’s car, where unfortunately he was pronounced dead on arrival. 7. Further, on 05.02.2020 during post mortem, he was present and the doctor had told them that the deceased had suffered a blunt injury to the head and that had resulted to his death. Under cross examination, he confirmed that the deceased would drink Alcohol, but was not a violent man. 8. PW5 Joseph Kimeu Mwangi also confirmed that he did attend the dowry ceremony and there was a lot of food and Alcohol flowing. At about 4.00pm, he was called by one, “Gideon” and was requested to urgently rush the deceased to hospital. He found him lying by the road, outside the compound where the dowry ceremony was going on and upon reaching Igegania hospital, he was pronounced dead on arrival. He further confirmed that while taking the deceased to hospital, he saw the accused also seated about one meter away from the accused. 9. PW6 Christopher Karana Mwangi too confirmed that he was at the dowry ceremony and at about 4.00pm got information that the accused and the deceased were fighting outside the compound, where the said ceremony was being held. After a while they resumed fighting and, on this occasion, he went to see what was going on. He found the deceased lying by the road side, while the accused was seated next to him. They assisted in getting means for the deceased to be rushed to hospital and then tied up the accused person and had him escorted to the police station. 10. PW7 John Waweru Ndukui evidence mirrored that of PW5 and PW6 and he further confirmed that both the accused and the deceased were in their group and he was present when they started to fight. They managed to separate them, but once outside the wedding venue, they escalated the said fight and as a result the deceased sustained serious injuries and was bleeding profusely from the mouth and his ears. He did not witness the fight by the road side, but various witnesses had told him that the accused had hit the deceased, but he was not sure of the weapon used. 11. PW8 David Karanja Nguru also confirmed that he was at the dowry ceremony and were called to assist the deceased, who they found lying by the road side and was bleeding profusely. He was informed by the present crowd that it was the accused who had injured the deceased, though personally he had not witnessed the said fight. They organized and had the deceased rushed to hospital and also effected public arrest upon the accused and called the area chief (PW2) who took him to the police station. 12. PW9 PC Erickson Gisore, recalled that on 01.02,2020, he was assigned to investigate a murder incident reported vide OB 18/1/2/2020, where it was reported that the deceased had been fatally wounded by the accused person. He did visit the crime scene and established that both the accused and the deceased were drinking, “Muratina” at the dowry ceremony within the community and a fight had arising between them before being separated, but they had continued to fight outside the said home, which resulted in the accused inflicting a fatal injury upon the deceased. 13. Various witness had seen them fighting and the accused was arrested at the scene of crime. On 05.02. 2020 he did attend the post mortem process and the doctor had confirmed that the accused had died due to blunt force trauma to the head. Under cross examination he reaffirmed his earlier evidence and explained how he undertook his investigations and arrived at the conclusion to charge the accused with the offence before court. 14. PW10 Dr. John Mathayia confirmed that on 05.02.2020 at General Kago hospital mortuary he did do a post mortem examination on the deceased body and noted that he had a large swelling on the right side of the head measuring about 6cm x 4cm and upon opening the skull, he did note that he had a huge contusion and blood clots on the head ( sub dural hematoma), which had caused inter cranial pressure. He formed the opinion that his death was caused by blunt force trauma to the deceased head and signed the said post mortem report on the same day. 15. The prosecution closed their case at that point and the accused was placed on his defence and opted to give sworn evidence. 16. **DEFENCE CASE** 17. The accused gave sworn evidence and testified that the deceased was his cousin brother and their families had over the years maintained good relations and that the same was the position between him and the deceased. Further, even after the incident, their families had still remained cordial. Regarding the incident, they had both attended the said dowry ceremony and as part of the celebrations had partaken of “Muratina”, which was being supplied in plenty and even shared a cigarette with the deceased. 18. Unfortunately, after the deceased got drunk, he had started to throw words at him but he opted to avoid him and keep his cool. He left the said compound but the deceased still followed him and asked him to wait for him so that they could discuss their issue, but when he reached where he was, unprovoked the deceased attacked him, tripped him and they fell together inside a ditch by the roadside. In the said process, the deceased hurt his head and started to nose bleed. 19. He denied assaulting the deceased and further confirmed that he was arrested and taken to kwamwangi police station, where the DCI noted his injuries from the said fall and was treated at Igegania level 4 hospital and Kiambu level 5 hospital. He urged the court to note that it was the deceased who was the aggressor and believed that he had sustained his injury as a result of a fall on a stone and not as a result of his reaction. 20. Under cross examination, he confirmed that both of them were drank and strenuously denied PW1 assertion that he had hit the deceased on his head, which resulted in the injury sustained. He thus urged the court to acquit him of the charges leveled against him **D. DETERMINATION** 1. I have considered the evidence 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 ***Joseph Migwi Gathagu***, the deceased herein. 2. **Section 203 of the** [**Penal Code**](http://resolver.caselaw.kenyalaw.org/resolver/akn/ke/act/1948/81) 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.”*** 24. 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”.*** 1. The Court of Appeal at Nyeri in **Criminal Appeal No. 352 of 2012 Anthony Ndegwa Ngari vs. Republic [2014] eKLR**, summed up the elements of the offence of murder as follows: - 1. ***the death of the deceased and its cause;*** 2. ***that the accused committed the unlawful act which caused the death of the deceased; and*** 3. ***that the accused had malice aforethought.*** 2. I will now proceed to interrogate each issue. 3. ***The death of the deceased and its cause.*** 27. It is common ground that **Joseph Migwi Gathagu**, died on the evening of 01.02.2020 as a result of fatal head injuries sustained from an Assault. This was confirmed by all the witnesses and especially by the evidence of Dr. J.N Mathaiya (PW 10), the pathologist who conducted the post mortem on 05. 02. 2020. He described in detail the extensive injuries suffered by the deceased on his head and certified that he died as a result of head injury caused by blunt force trauma. The post mortem report was produced into evidence as Exhibit 1. 28. This court therefore finds as a fact that the deceased died as a result of the said injuries sustained as enumerated above. 1. ***Whether it has been proved that the accused committed the unlawful act which caused the death of the deceased:*** *29.* PW1 to PW8 all placed the accused at the scene of crime and confirmed that he fought with the deceased. In defence the accused person too, admitted that he fought with the deceased, but alleged that in the cause of the said fight they fell into a ditch and the deceased hurt his head when he fell on a stone. PW1 and PW7 saw the fight and disapproved the accused version of events. The deceased himself also confirmed to PW1 that it was the accused who had harmed him and in particular told PW1 that “ ***Njoroge amenigonga***”. 30. when all the evidence presented is considered, it forms a complete chain of events that unerringly points at the accused as the guilty party who had a hand in the death of ***“Joseph Migwi Gathagu”*** and leads to the inescapable conclusion that within all human probability, the said murder which occurred was without doubt committed by him. 1. **Malice Aforethought** 31. 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.”*** 32. It is sufficient to say that the mental element required by **section 206 of the Penal Code** can be equated to broad guidelines set out in the case of **Tubere s/o Ochen vs. Republic [1945] 12 EACA 63:** “***The weapon in possession of the accused while carrying out the intention, the manner in which it was used to strike the human being whether one off blow or violent multiple blows, the conduct of the accused in fleeing from the scene afterwards, the permanency or dangerous severity of the bodily harm and that cumulatively the death of the deceased must ensue from the bodily harm intentionally inflicted.”*** 33. All the witnesses confirmed that the accused and the deceased were close relatives, had enjoyed drinking “Muratina” at the dowry ceremony held at Mr. Peter’s Mwangi Gitau’s home and that the fight occurred during their drunken stupor. In defence the accused person amplified on these facts and strongly submitted that he did to have any grudge against the deceased nor had the prosecution proved any malice aforethought as against him. 34. In assessing the weight to be given to intention as an element of murder, the relevant circumstances must be considered as to whether the accused 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.”*** 1. While it has been proved beyond reasonable doubt that it is the accused, who inflicted the fatal blow on the deceased head, the facts also establish that they were drunk having enjoyed the whole afternoon taking “Muratina” and further it was also not shown that the accused had any preconceived mind to harm the said deceased person. **Section 13 of the penal code**, deals with the issue of intoxication in criminal matter and provides that: ***“13(1) Save as provided in this section; intoxication shall not constitute a defence to any criminal charge.*** ***(2) Intoxication shall be a defence to any criminal charge if by reason thereof the person charged at the time of the act or omission complained of did not know that such act or omission was wrong or did not know what he was doing and –*** ***(a) the state of intoxication was caused without his consent by the malicious or negligent act of another person; or*** ***b) the person charged was by reason of intoxication insane, temporarily or otherwise, at the time of such act or omission.*** ***(3) Where the defence under subsection (2) is established, then in a case falling under paragraph (a) thereof the accused shall be discharged, and in a case falling under paragraph (b) the provisions of this Code and of the Criminal Procedure Code relating to insanity shall apply.*** ***(4) Intoxication shall be taken into account for the purpose of determining whether the person charged had formed any intention, specific or otherwise, in the absence of which he would not be guilty of the offence.*** ***(5) For the purpose of this section, “intoxication” includes a state produced by narcotics or drugs.”*** 1. Under ***section 13 of the Penal Code***, intoxication is not a general defence to a criminal offence, except in the circumstances set out in the section. A person who commits an offence while intoxicated is not *ipso facto* excused from the consequences of his act. The aforementioned section affords a defence of intoxication in three situations as follows. (a)***The first situation is in what is called involuntary intoxication, where at the time of the commission of the act complained of, the accused person does not know that it is wrong or does not know what he is doing, because of intoxication caused without his consent by the malicious or negligent act of another person. In such a case, the court is required to discharge the accused person.*** (b)***The second situation is where the accused person, by reason of intoxication is insane, temporarily or otherwise, so that at the time of commission of the act complained of, he does not know that it is wrong or does not know what he is doing. This situation brings the case within the M’Naghten Rules and the court is required to deal with the accused person in the manner prescribed by the Criminal Procedure Code for accused persons who were insane at the time of commission of the offence, culminating in a special finding of guilty but insane and the detention of the accused person in a mental hospital at the pleasure of the President.*** In ***Rex v. Retief [1940-1943] EA 71***, the former Court of Appeal for Eastern Africa explained this aspect of the defence of intoxication as follows: ***“The insanity whether produced by drunkenness or otherwise is a defence to the crime charged. The law takes no note of the cause of insanity and, if actual insanity in fact supervenes as the result of alcoholic excess, it furnishes as complete an answer to a criminal charge as insanity induced by any other cause. It is immaterial whether the insanity so induced was permanent or temporary and if a man’s intoxication were such as to induce insanity so that he did not know the nature of his act or that his act was wrongful, his act would be excusable on the ground of insanity and the verdict should be as laid down in section 159 of the Criminal Procedure Code ‘guilty of the act charged but insane when he did the act.’ ”*** ***(c)*** The third situation, contemplated by section 13(4), arises whereby reason of intoxication the accused person is incapable of forming a specific intent, which is an element of the offence charged. Sometimes this situation is referred to as “***intoxication or drunkenness negativing mens rea”.*** In ***Said Karisa Kimunzu v. Republic, CR App No. 266 of 2006 (Msa)***, the Court stated thus regarding intoxication or drunkenness negativing mens rea*:* ***“But under subsection (4) the court is required to take into account the issue of whether the drunkenness or intoxication deprived the person charged of the ability to form the specific intention required for the commission of a particular crime. In a charge of murder such as the one under consideration, the specific intention required to prove such an offence is malice aforethought as defined in section 206 of the Penal Code. If there be evidence of drunkenness or intoxication then under section 13(4) of the Penal Code, a trial court is required to take that into account for the purpose of determining whether the person charged was capable of forming any intention, specific or otherwise, in the absence of which he would not be guilty of the offence. In the circumstance of this appeal, the learned trial Judge was required to take into account the appellant’s drinking spree of the previous night and even that morning in determining the issue of whether the appellant was capable of forming and had formed the intention to kill his son.”*** 1. The question that then arises, is whether in the said state of intoxication, the subject herein was fully aware of the consequences of his actionand/or if itdeprived him of the mens rea required for the commission of a particular crime. 2. Based on the evidence presented, am not satisfied that malice aforethought has been established in terms of **Section 206 of the Penal Code** as all the parties involved were in a state of drunken stupor, when the dispute arose, resulting in the accused person assaulting the deceased and inflicting the fatal blow on the deceased head that unfortunately lead to his death. It was also not shown that they had any prior differences and/or grudge, which could have triggered the fight. 39. Having so determined, the court falls back to **Section** **179 of the Criminal Procedure Code,** whichprovides- ***(1) When a person is charged with an offence consisting of several particulars, a combination of some only of which constitutes a complete minor offence, and the combination is proved but the remaining particulars are not proved, he may be convicted of the minor offence although he was not charged with it.*** ***(2)When a person is charged with an offence and facts are proved which reduce it to a minor offence, he may be convicted of the minor offence although he was not charged with it.*** **D. DISPOSITION.** 40. In the premises, I find that the offence of Murder has not been proved and accordingly reduce the charge of murder to manslaughter. The accused is acquitted of the charge of murder but convicted of the lesser offence of manslaughter contrary to section 202 as read with Section 205 of the Penal Code. 41. The probation and after care department are directed to file the pre-sentence report within the next 21 days. 42. Right of Appeal, 14 days. 43. It is so Ordered**.** **Judgment, signed at KIAMBU this ……29th ..…...day of JUNE 2026.** **FRANCIS RAYOLA OLEL** **JUDGE** **Judgment read and delivered in open court on this…..29th … day of JUNE 2026.** **In the presence of:-** ……………………………………..Accused ………………………………….For O.D.P.P …………………………………. Court Assistant