https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8235

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT NANYUKI HIGH COURT CRIMINAL CASE NO. 10 OF 2019** **REPUBLIC PROSECUTION** **VERSUS** **PATRICK MARWA ACCUSED** **JUDGEMENT** 1. Patrick Marwa (the Accused) has been charged with the offence of Murder contrary to Section 203 as read with Section 204 of the Penal Code. 2. The particulars of the offence are that on the 4th day of May 2029 at Administrative police line two (AP line 2) within Maralal town in Samburu County he murdered Dancun Cheruiyot. 3. The Accused person pleaded not guilty on 28th October 2019. The summary of the evidence is as follows. 4. **PW1** was **APC Gedion Njehia** who testified that on the 4th May, 2019, around 1745 hours at Samburu Central AP camp, he drove towards the AP camp for briefing and deployment. He was stopped by S/SGT Dancun Cheruiyot, the deceased in this case, who boarded the vehicle and the two proceeded to Line II. They stopped at the armoury and alighted from the vehicle. PW1’s mission at that time was to transport officers who were to go on night guard duties to their assigned posts. Three other officers who were supposed to be on board had not assembled and were taking rifles from the armoury. As he went to look for them, he heard gunshots from the armoury, and he ran for safety. He later saw the deceased lying down lifeless and Sergeant Lekimarere arrested the Accused herein. He was holding his hand. PW1 then drove Sgt Lekimarere and the Accused to Maralal police station. 1. **PW2** was **Kipkorir Cheruiyot Davis** the deceased’s’ brother who identified the deceased during the post-mortem. 2. **PW3** was **AP SGT Reuben Lekimarere** who stated that on 4th May, 2019 at around 1700 Hrs. He went to collect a rifle at the armory at AP line two. He found in charge armory AP Isaac Losonge who issued him with a G3 rifle with 20 rounds. He was to proceed on duty at China construction site at yare together with his colleague, the accused, whom they had worked with the previous night. After being issued with the rifle, he went to the main gate to wait for the police vehicle to ferry them to the site. He asked the in-charge armory whether the accused had collected his rifle which he confirmed in the affirmative. 1. When he got to the sentry box, the accused person came to where he was and didn't talk to him and after about twenty minutes, the vehicle came and on board was the in-charge who is the deceased S/SGT Cheruiyot. He alighted from the vehicle and asked the accused why he had refused to stand down and yet he had been instructed him to return the rifle to the armoury since he was not going to be on duty. The accused walked as if he was going to the armoury and stopped after about ten metres. He told the deceased in Kiswahili ‘Afande umenitafuta sana na utaenda kuachana na mimi’ meaning he had followed him for a long time and he should leave him alone. The accused cocked his gun and the witness tried to plead with him to stop doing what he was doing but before he could finish, he shot at the deceased. He them stated that ‘ Nimeua, niko tayari kufungwa murder’. 2. The witness ran to look for cover and the deceased also ran to look for cover but the accused followed him, shooting rapidly. Since the deceased had gone behind the store, PW3 thought he was safe only to realize that he had been shot dead and was lying in a pool of blood next to the sentry box. The accused later handed over the rifle to the in-charge armory. The accused later called him from where he had taken cover and told him to escort him to Maralal police station since he had killed which he did. 1. **PW4** was **APC Isaac Kasio Loisenke,** the in-charge armoury who testified on 31/5/2021 that on 4/5/2019 at around 1720 Hrs he went to the armoury to issue firearms to the officers who were proceeding on night duties. At around 1728 Hrs. he issued a firearm to one Ap Philemon Ruto who later left. At around 1729 Hrs. he issued a G3 rifle S/No. 354854 with twenty rounds to the accused who later left the armoury. He was to be on night duty at China construction site in Yare together with PW3 who came around 1745 Hrs and was issued with a G3 rifle and went to the sentry box where they had to wait for the vehicle to ferry them to the China construction site together with the accused. 2. He continued issuing firearms to the police officers and after five minutes, PW8 came, and then as he was issuing him with a firearm, they heard gunshots outside the armoury. They stayed in the armoury and after about two minutes, the gunshots ceased. PW8 went out of the armory leaving him behind. He also came out and saw the accused handing over the G3 rifle to PW8, from which he had already removed the magazine. The accused was put in the land cruiser by PW3 and escorted to Maralal police station. This is the time they went to see who had been shot dead and were shocked to see that the deceased had been shot dead by the accused and was lying dead between the sentry box and the store. 1. **PW5, Dr. Kuria** produced the post-mortem report (PExhibit 6) on 21/9/2021 which revealed the course of death as cardiopulmonary arrest secondary to severe head injury and hypovolemic due to multiple gun shots. He stated that the deceased body had 9 entry wounds and 9 exit wounds. 2. PW6 was James Onyango, a firearms examiner with the Directorate of Criminal investigations. He stated that he had received the exhibits in the memo form dated 4th May 2019 and examined the exhibits to determine whether it was a firearm. He additionally tendered his report as evidence and produced it as PExhibit 7(a) and the form as Exhibit 7(b). 3. **PW7** was **IP Daniel Musembi**, the scenes of crime personnel who produced photographs, certificate, PExhibit 8 and 9 on 21/9/2021. 4. **PW8** was **APC Wakhungu W. Vitalis** who testified that on the 4th day of May, 2019 at around 1750 Hrs. He was at the AP Line in his house but since he had to report on night shift duties, he left the house and walked towards the armoury where he had to be issued with a rifle and join his colleague George for the night duty. He saw their work motor vehicle land cruiser entering the camp but it turned back and stopped near the sentry box. He saw the deceased who alighted and walked towards the sentry box. 5. He went to the armoury to be issued with a rifle by PW4. In the process he heard gun shots from outside and from the side of the main entry to the AP camp where he had seen the deceased and the accused standing. He dashed out of the armory but he never saw anybody except the accused who was standing alone and who turned and looked towards his direction. He then asked the accused what was going on and the Accused replied by telling him that he has “finished him” and let him be jailed. He then looked next to the Accused and he him saw the deceased lying down on the ground. The accused moved forward and sprayed bullets on the back of the deceased. PW8 told the Accused to stop. The accused then removed the magazine from his G3 rifle and he handed both the rifle and the magazine to PW8. Sergeant Lekimare and the driver took the Accused to the police station. The deceased’s head had been completely blown out. 1. **PW9** was **PC Stephen Ndonga**, the investigating officer. He testified that on 4/05/2019 at around 1750 Hrs. he received the report by PW3 of the shooting incident of the deceased by the accused. After receiving the information, he accompanied the DCIO, CI WANYONYI to the scene of murder at AP line 2 where on arrival they found the lifeless body of the deceased lying dead in a pool of blood between the store and the sentry box. They also found other officers at the scene they recovered ten spent cartridges of 7.62mm. They also recovered a G3 rifle SNO J54854 and the scene was photographed and the body was removed to Samburu County referral hospital. He produced the G3 rifle as PEXHIBIT 1, 10 spent cartridges as PExhibit 2, 7 live bullets PEXHIBIT 3, arms movement register as PExhibit 4 and magazine as PEXH1BIT 5. 2. **PW10** was **APC Yonah Mokua Nyakundi**, an officer performing general duties as duty corporal. He stated that on 4/5/2019 at about 1600 hrs. He realized the accused had prepared to attend to duty at China construction with his colleagues. He noted that the duty roster for the day had been changed and Marwa had been substituted with another officer, one Kogo. The changes had been effected by the deceased. When informed of the same, the Accused indicated that he would deal with the issue himself with the deceased. PW10 later heard gun shots and when he arrived at the scene, he found the deceased lying down with gunshot wound in a pool of blood while the accused was being arrested for the killing the deceased. 1. On being placed on his defence, the Accused gave a sworn statement and called one expert witness who testified first. This was **DW1, Dr Ruth Gathuru** who testified that she received the accused in her facility on 23/5/19 and examined him. He had allegedly killed a person. He had a previous history of mental illness at some time. On examination, he was in a fair general condition and had good orientation in time and place. He knew the time and day and where he was. He was clean and tidy. He exhibited abnormal mannerisms staring blankly and looking around abnormally. He was emotionless. 2. The doctor added that on intelligence, the same was appropriate for his age and education. She found no abnormal thoughts. The short term and long term memory was good. He had auditory hallucinations. She determined that he had schizophrenia. The mental state was abnormal and he was unfit to plead. She stated that a person in this state was not in their right mind. 3. DW1 made reference to another report by Dr. M. Richu Mwendwa. In this report, the symptoms had remitted meaning that they had disappeared. Doctor Ruth Gathuru produced both reports in evidence. 4. On cross examination she stated that there was a mental assessment report indicating that the accused is normal and ready to take plea. 5. DW2 (the Accused) gave sworn testimony. He stated that on 3/5/19, he was on duty at China Construction site where he had been asked to relief a colleague. He was with Sgt Reuben (PW3). They signed out in the morning. He returned his firearm on the morning of 4/5/19. He was not on duty during the day. He did not recall well. 6. He stated that he was to relief Kogo again on 4/5/19. He did not recall signing for a firearm that day. Later while in remand at Nanyuki, he was brought a file that he had signed for a firearm on 4/5/19. He added that he could not recall anything about what was said in evidence. He added that Cpl Mokua was the duty officer and he had said that the Accused should not go on duty on on 4/5/19. He is the one who had assigned him to relieve Kogo. If he had disobeyed the instructions, police standing orders required that the matter be escalated upwards in the hierarchy. It was his case that he could not have been given a firearm if the duty Cpl had said he should not go to work. 1. The Accused further said that at Nyeri, he was treated of high blood pressure. That he was on drugs and before plea he took drugs for long. On cross examination she stated that there was a mental assessment report indicating that the accused is normal and ready to take plea. ### Accused person’s submissions 1. Counsel for the Accused person recounted the testimonies of the witnesses before delving into that issues for determination. 2. Counsel cited the definition of murder under Section 203 of the Penal Code and urged that the Prosecution has a burden of establishing the following essential elements beyond reasonable doubt; 1. That the Deceased died. 2. That the Death was caused by the unlawful act or omission of the Accused. 3. That at the time of the act or omission, the Accused had malice aforethought as defined under Section 206 of the Penal Code. 3. Counsel urged that malice aforethought shall be deemed to be established by evidence proving any one or more of the following circumstances. 1. An intention to cause Death of or to do grievous harm to any Person, whether such Person is the Person actually killed or not; 2. Knowledge that the act or omission causing Death will probably cause the Death of or grievous harm to some Person, whether such Person is the Person actually killed or not, although such knowledge is accompanied by indifference whether Death or grievous bodily harm is cause or not, or by a wish that it may not be caused. 3. An intent to commit a felony. 4. 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. 4. Counsel urged that the most direct form of malice aforethought is a deliberate intent to kill or cause serious injury. He cited the Case of **Nzuki vs Republic [1993] KLR 171** in this regard and urged that the Accused Person produced Three (3) Mental Assessment Reports, Two (2) of the Reports indicated that he was suffering from Schizophrenia a Mental Disorder related to Psychosis. The Psychologist who testified as DW1 explained to the Honourable Court the effect of Schizophrenia and its impact on normal Personal Judgement. This simply makes the ability to form malice aforethought be in question. Reliance was placed on the Case of **Republic vs Mohammed Dadi Kokane [2015] eKLR.** Counsel cited Section 12 of the Penal Code Cap 63 and urged that it is not in dispute that the Accused Person stayed in Remand for about five months before the Charges were read to him. This was so because he was not fit to Plead and was on Medication. Later, the Final Mental Assessment declared him fit to take Plea. Counsel cited the Case of **Republic vs SMW [2017] eKLR,** and urged that in this present Case, the Accused Person was insane at the time of the Offence and only recovered with Medication while on Remand. 1. That during his Defence, the Accused Person clearly indicated to the Honourable Court that he did not know what happened on the 4th May 2019. The Doctor confirmed that the Mental Disorders suffered by the Accused Person is permanent and can only be managed with Medication. Counsel invited the Court to enter a Special Verdict of Not Guilty by reason of Insanity under Section 166 of the CPC. Reliance was further placed on the Case of **REPUBLIC VS PMM [2018] eKLR.** Counsel urged the court to find him not guilty. ### Prosecutions’ submissions 1. Counsel submitted that the ingredients to be proven are contained in the definition of the offence as per Section 203 and malice aforethought as per Section 206 of the Penal Code. Further, that in order to secure a conviction on the charge of murder, the three ingredients necessary to prove are as follows: - 2. the death of the deceased occurred; 3. that the accused committed the unlawful act which caused the death of the deceased; and 4. that the accused had malice aforethought. 5. Counsel urged that the evidence presented before the court was both oral and documentary in nature. The prosecution availed a total of 10 witnesses who gave evidence in accordance with Section 63 of the Evidence Act, and produced 9 exhibits in accordance with Section 64 and 65(1) of the Evidence Act for the courts consideration. 6. Counsel reproduced the testimonies of the witnesses and urged that the testimony was provided by credible and reliable witnesses and the exhibits in support were produced. That the direct evidence meets the required threshold and actively links the accused person to the death of the deceased. 7. Counsel cited Section 62 of the Evidence Act and the case of **People vs Bretagna (298 NY 323, 325-326 [1949]),** urging that it is trite law that an eye witness is a person who gives direct evidence on how an event took place and therefore his/her testimony would have more probative value. In the instant case the evidence of the witnesses was direct. That the testimony given by witnesses in court was direct as they were eye witnesses who all placed the accused person at the scene of crime and saw him attack the deceased using the G3 refile- PExhibit 1. 1. On the death if the deceased, counsel urged that this was confirmed by all the prosecution witnesses, more so by the evidence of PW5 who carried out the post-mortem on the deceased’s body and after the examination, reached the conclusion on the cause of death. The post- mortem form PEXH.6 produced by Dr. Kuria on 26th September, 2021 reveals that the deceased died as a result of cardiopulmonary arrest secondary to severe death injury hypovolemic shock due to multiple gun shots. 2. On Proof that accused person committed the unlawful act which caused the death of the deceased, Counsel urged that PW3, PW4, PW8 testified that the accused as the person that attacked the deceased and shot him with the G 3 refile. The accused was well known to the witnesses as he was their colleague at the AP post. The incident took place around 05.00 pm and there existed conducive conditions for recognition of the Accused. 3. On Malice aforethought counsel urged that having proved actus reus, the issue for determination is whether malice aforethought can be inferred in the circumstances. Counsel urged that the offence of murder is complete when, “malice aforethought” is established pursuant to the provisions of section 206 of the Penal Code. 4. That when none of the aforesaid elements are proved but there is otherwise an unlawful killing of another human being, the person commits the felony of manslaughter under section 202 Penal Code which is punishable under section 205 Penal Code by a term of imprisonment extending up to life. 5. Counsel placed reliance on the case of **Morris Aluoch v Republic Cr.** **Appeal No. 47 of 1996 [1997] eKLR),** and urged that the evidence of witnesses showed the accused person at the scene of crime and positively identified him as the person who assaulted the deceased on 4/5/2019, which assault resulted in such grievous injuries that led to the deceased’s death. That Malice afore thought has been proven by the type of injuries sustained from the assault, the weapon used and the part of the body targeted, all pointing to an intention by the accused to cause grievous harm to the deceased. 1. On the accused defence of insanity, Counsel pointed at the accused persons’ evidence on this and urged that the prevailing law with regards to this line of defence is as was expressed in **Leonard Mwangemi Munyasia vs. Republic [2015] eKLR.** 2. Counsel urged that the defence tendered by the accused does not necessarily acquit him of the offence of murder. That authorities on this subject have so far declared section 166 and 167 of the Criminal Procedure Code unconstitutional. In cases where the accused has not recovered from the illness they are declared guilty but insane and thus sent to a mental institution for treatment. In cases where the accused has recovered in the course of the trial like the instant case, the accused person can be convicted and sentenced appropriately depending on the circumstances of the case. Reliance was placed on **Republic v Korwa (Criminal Case E004 of 2022) [2024] KEHC 3013 (KLR) (15 March 2024).** 3. Counsel urged that the prosecution has established all the ingredients of the offence of murder and therefore prayed that this court makes a finding that the accused is guilty and use its discretion to convict him accordingly. 4. I have considered the charge, the evidence on record and learned submissions by counsel including case law cited. I have taken into account the applicable law. The issue for determination is Whether the prosecution proved its case to the required standard. 5. Section 203 as read with 204 of the Penal Code under which the accused is charged provide for the offence of murder and the punishment therefor. The provisions are premised as follows: ### “203. Any person who of malice aforethought causes death of another person by an unlawful act or omission is guilty of murder. **204. Any person who is convicted of murder shall be sentenced to death.”** 1. To secure a conviction, the prosecution bears the burden and duty to prove, beyond reasonable doubt, that the accused, by an unlawful act or omission, caused the death of the deceased through “malice aforethought”. 2. The applicable threshold was explained in the leading case of **Woolmington v Republic 1935 AC 462**, as follows: # “Throughout the web of the English Criminal Law one golden thread is always to be seen, that it is the duty of the prosecution to prove the prisoner’s guilt subject to what I have already said as to the defence of insanity and subject also to any statutory exception. If at the end of and on the whole of the case, there is a reasonable doubt, created by the evidence given either by the prosecution or the prisoner, as to whether [the offence was committed by him], the prosecution has not made out the case and the prisoner is entitled to an acquittal. No matter what the charge or where the trial, the principle that the prosecution must prove the guilt of the prisoner is part of the common law of England and no attempt to whittle it down can be entertained.’’ 1. For the Court to make a finding that an accused person committed the offence of murder, the Prosecution must therefore establish the following elements; ### death of the deceased, 1. **proof that the accused person committed the unlawful act which resulted in the death of the deceased: and,** 2. **malice aforethought.** 3. In this case, the death of the deceased and cause thereof are not disputed. According to the testimony of PW5, Dr. Macharia, who conducted an autopsy on the body of the deceased, the cause of death was “cardio-pulmonary arrest secondary to severe head injury and hypervolemic shock because of multiple gunshot wounds”. 4. On whether there is proof that the accused is the person who committed the unlawful act which resulted in the death of the deceased, the evidence on the same was direct. PW3, Sergeant Reuben Lekimarere gave a graphic and detailed account of what transpired between the deceased and the Accused at the material time. He testified that he witnessed the accused respond to the deceased when he was asked to return his weapon to the armoury. I reproduce the conversation between the deceased and the Accused at the material time as it forms an important component of the case herein. Deceased to Accused *“ Nilituma corporal akuambie usiende hiyo kazi ukakataa mpaka mimi nikuje? Hiyo Kazi hautaenda. Rudisha silaha yako armoury”* (I sent corporal to tell you not to go for that duty and you disobeyed unless I personally came? You are not going for that duty. Return your arm to the armoury). In response, the Accused stated; ## “Afande umenitafuta sana na utaenda kuachana na mimi!” ( Boss, you have been against me and you will leave me alone). 1. It is then that PW3 saw the Accused cock his rifle. He intervened and shouted at him in Swahili *“Marwa achana na hii maneno”* (Marwa stop what you are doing) but to no avail. It is then that the Accused shot the deceased and even as the deceased scampered for safety, the Accused persued him and shot at him more. After the accused shot the deceased, he surrendered and told PW3 that he had dealt with the problem that he had and therefore he had no problem with anyone else. 2. PW8 also witnessed the accused spray the deceased with bullets in the back after the initial shot and state that ‘Nimeua, niko tayari kufungwa na murder’ after which he disarmed him and PW3 helped arrest him. 1. From this direct evidence, I harbour no doubts in my mind that the deceased’s death was caused by an unlawful Act on the part of the Accused. 2. The Prosecution having proved the actus reus, the next issue is whether “malice aforethought” can be inferred from the actions of the accused person. This is because the offence of “murder” is only complete when “malice aforethought” is established if, as prescribed in Section 206 of the Penal Code, the evidence proves any one or more of the following circumstances: ### 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; 1. **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;** 1. **An intent to commit a felony;** 2. **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.”** 3. In the case of **Hyam v DPP {1974} A.C.** the Court held inter alia that: ### “Malice aforethought in the crime of murder is established by proof beyond reasonable doubt when during the act which led to the death of another the accused knew that it was highly probable that, that act would result in death or serious bodily harm.” 1. The Court of Appeal, on its part, in the case of **Bonaya Tutu Ipu & Another v Republic [2015] eKLR**, stated as follows: ### “. In the persuasive decision of Chesakit v Uganda, CR **App No 95 of 2004, the Court of Appeal of Uganda stated that in determining a charge of murder whether malice aforethought has been proved, the court must take into account factors such as the part of the body injured, the type of weapon used, if any, the type of injuries inflicted upon the deceased and the subsequent conduct of the accused person.”** 1. Further, the Court of Appeal, in the case of **Morris Aluoch v Republic [1997] eKLR)**, quoted **Rex vs Tubere S/O Ochen (1945) 12 EACA 63** guided as follows: ### “If repeated blows inflicted the injury then malice aforethought could well be presumed but in this case we have to contend with one single blow which caused perforation of the intestine which led to internal bleeding which did not become apparent until the death of the deceased some four days later.” 1. The defence contends that the accused was insane at the time of the commission of the offence. The evidence relied upon consists principally of the testimony of DW1, Dr. Ruth Gathuru, who examined the accused after the incident and diagnosed him with schizophrenia. The accused was subsequently placed on medication and was later found fit to plead. 2. The law relating to insanity is contained in Sections 11 and 12 of the Penal Code. Section 11 creates a rebuttable presumption that every person is of sound mind until the contrary is proved. Section 12 provides that a person is not criminally responsible for an act if, at the time of doing the act, he was through disease affecting his mind incapable of understanding what he was doing or of knowing that he ought not to do the act. 3. The Court of Appeal in **Mariam Wanjiku Karanja & Another v Republic [1998] eKLR** held that the crucial consideration is the mental state of the accused at the very time the offence was committed. Similarly, in **Wakesho v Republic [2021] KECA 223 (KLR),** the Court emphasized that it is not sufficient merely to establish the existence of mental illness; it must be shown that the illness deprived the accused of the capacity to understand the nature of his act or to know that it was wrong at the material time. 4. While DW1 diagnosed the accused with schizophrenia after the event, no evidence was tendered demonstrating that the accused was suffering from such a condition at the time of the shooting. There were no medical records predating the incident, no evidence of previous treatment, hospitalization, disciplinary concerns attributable to mental illness, or testimony from colleagues suggesting abnormal behaviour prior to the offence. 5. On the contrary, the evidence of **PW3, PW4, PW8** and **PW10** depicts a person acting purposefully and rationally. The accused armed himself, confronted the deceased over a specific grievance, verbally expressed his dissatisfaction, cocked his rifle, pursued the deceased after the initial shot and continued firing until the deceased fell. Thereafter, he surrendered his weapon and repeatedly acknowledged responsibility for the killing, stating that he was ready to face the consequences. 6. The Court of Appeal in **Leonard Mwangemi Munyasia v Republic [2015] eKLR** observed that conduct before, during and after the commission of an offence may be relied upon by a court in determining whether an accused person was capable of forming the requisite criminal intent. In the present case, the accused's conduct demonstrates awareness of his actions and appreciation of their consequences. 1. Further, the accused's own testimony undermines the defence of insanity. Although he claimed not to remember the shooting, he recalled in considerable detail the events preceding it, including his deployment, his duty assignment, the change of roster and the instructions issued by his superiors. His professed inability to remember only the shooting incident is inconsistent with the totality of the evidence and lends credence to the finding that the alleged memory loss was selective. 2. Having carefully evaluated all the evidence, I am not satisfied that the presumption of sanity established under Section 11 of the Penal Code has been displaced. The defence has failed to prove that the accused was suffering from such a disease of the mind as would have rendered him incapable of understanding the nature of his actions or of knowing that what he was doing was wrong. I therefore reject the defence of insanity. 3. This conclusion is given credence by the holding in **Wakesho v Republic (supra)** where the court of appeal emphasized the point of relevance of the mental state of mind thus; # “The critical point at which the mental state of the accused person is relevant for purposes of the defence of insanity is at the time of 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 act.” 1. The evidence before this court shows an offender whose full cognitive function was optimal at the time the offence was committed. It is easy to string the scenario from the evidence. The Accused was annoyed by the act of the deceased stopping him from going on duty on the material day. It appears from the extracts of his statement above that he harboured a grudge against the deceased. This is the reason why he took it upon himself to deal with his problem (his own words) once and for all. 2. His conversation with the deceased at the material time and the other officers depicts a person who was in sound state of mind. While I defer to the findings of the expert post event, and in the absence of any evidence to the contrary and after evaluating the evidence in its totality, I reject the defence of insanity. 1. Buttressing the presence of malice aforethought, it is clear from the evidence tendered, that the deceased died from the injuries inflicted by the gunshots fired by the accused person. Suffice it to say, the accused was well aware that shooting a person even once would cause his death and therefore, the sole intention for shooting him was to intentionally cause his death. The Accused did not stop at one gun shot. He fired 9 times extending the assault to when the deceased lay helpless on the ground. He even went to the extent of admitting that he had killed him referring to the deceased as his problem thus establishing a clear motive for the killing. 2. In determining whether malice aforethought has been established, the Court is guided by the principles set out in **Tubere s/o Ochen and reaffirmed in Bonaya Tutu Ipu & Another v Republic [2015] eKLR,** namely the nature of the weapon used, the manner in which it was used, the part of the body targeted, the severity of the injuries inflicted and the conduct of the accused before and after the attack. Applying those principles, the accused used a high-powered G3 rifle, fired multiple rounds at the deceased, pursued him as he fled, and continued shooting even when he was helpless. The deceased sustained nine entry wounds and nine exit wounds, including devastating injuries to the head. These circumstances leave no doubt that the accused intended either to kill the deceased or to cause him grievous bodily harm and therefore malice aforethought was proved beyond reasonable doubt. 1. The upshot of the foregoing is that I find the accused person, Patrick Marwa, guilty of the offence of murder contrary to Section 203 of the Penal Code, and as a consequence, convict him accordingly. ### Dated signed and delivered virtually this 11th day of June 2026  **A.K. NDUNG’U JUDGE**