https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6441

 REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT MAKUENI COUNTY COURT NAME: MAKUENI HIGH COURT CASE NUMBER: HCCRC/231/2017 THE REPUBLIC VS SAMUEL LETARUM SERICHO JUDGMENT  # REPUBLIC OF KENYA **IN THE HIGH COURT OF KENYA AT MAKUENI** **HCCRC NO. 231 OF 2017** **REPUBLIC PROSECUTOR** **VERSUS** **SAMUEL LETARUM SERICHO ACCUSED** **JUDGMENT** 1. Samuel Letarum Sericho is charged with murder contrary to section 203 as read with section 204 of the Penal Code. It is alleged that on 9/1/2012 at Joyland Bar; Restaurant in Makindu Township, Makindu District within Makueni County he murdered Samuel Macharia Mason. 2. The matter started off as Machakos HCCRC 3/2012. The accused appeared before Hon Ngugi J (as he then was) and pleaded not guilty on 24/1/2012. Hon Justice Ngugi dealt with the issue of bond – and thereafter the matter was mentioned by Hon. Asike Makhandia J (as he then was). 3. Thereafter the matter proceeded to hearing before Hon. Thuranira Jaden J on 23/7/2013. The Accused person was represented by Ngolya Advocate. The Hon Judge heard 3 witnesses. 4. On 21/6/2016 the matter was before Hon E. Ogola J. The accused made an application for the matter to start *de novo*, afresh. The Hon E. Ogola J heard that application, and determined it vide the Ruling dated 15/2/2017 in which he determined that the matter would proceed from where it had stopped before the Hon Thuranira Jaden J *.* 5. After that ruling the matter was fixed for hearing before Hon. D.K. Kemei J * on 12/2/2017. It did not proceed. 1. The High Court of Kenya at Makueni was established and the circumstances leading to this matter having happened in Makindu within the jurisdiction of the court, was transferred to Makueni. 2. On 20/9/2017 the matter was placed before Hon. C. Kariuki J. An order was made for the proceedings to be typed. No witness was heard by C. Kariuki J. 3. On 16/7/2017 the accused person made another attempt to have the matter start *de novo.* through his then counsel Mr. Muthama . However, the record shows that after consultations between the defence, the prosecution, the investigators, it emerged that it was difficult to procure witnesses who had already testified due to the age of the matter. This was 2017. The witnesses had testified in 2013. 4. On 17/9/2019, before Ong’udi J (as she then was) there was consensus for the matter to proceed from where it had stopped before the Hon Jaden J. However, by the time she left the station on transfer, no witness testified. 5. The Hon Dulu J took over the matter and the matter was mentioned before him on 29/6/2021. Mr. Hassan now appeared for the accused person. Once again no witness testified before Hon. Dulu J. 6. I took over the matter on 9/5/2023, almost 10 years since it was first heard. 7. Upon compliance with section 200 of the Criminal Procedure Code which applies to the High Court in accordance with s. 201 (2) which states *(2) The provisions of section 200 of this Act shall apply mutatis mutandis to trials held in the High Court.* 8. s. 200 of the CPC states inter alia… 1. *Subject to subsection (3), where a magistrate, after having heard and recorded the whole or part of the evidence in a trial, ceases to exercise jurisdiction therein and is succeeded by another magistrate who has and exercises that jurisdiction, the succeeding magistrate may—* *(3) Where a succeeding magistrate commences the hearing of proceedings and part of the evidence has been recorded by his predecessor,* ***the accused person may demand that any witness be resummoned and reheard and the succeeding magistrate shall inform the accused person of that right.*** 1. The accused was informed of his rights and the proceed from where it had stopped. 2. I heard PW4, PW5, PW6, PW7, PW8 & the accused person’s statement of defence. 3. From the outset it is important to state that I did not find a copy of proof read typed proceedings – what is in the file and has a note on the top right cover (Draft copy for proof reading). # Prosecution’s Case 1. **Pw1 Charles Muiruri Karanja** testified that on the 9/1/2012 he was sleeping in his house at Makindu town when one Mutisya rang him to borrow a motor vehicle jack. He woke up, gave it to him, then decided to go and buy cigarettes from the nearby bar. He found some people he knew, ordered a soda for himself and sat with them at the same table. 1. It was then that one Macharia whom he knew came in; and went to the counter; he heard quarrels between the bar maid and Macharia who was saying that he had given her Kshs. 1000/=, yet she was insisting he had given her Ksh 100/= she was giving him change of Ksh 40/= he was demanding Ksh 940/=. 2. The witness testified that from where he was seated he could see through the glass windows of the verandah to the counter where this was going on. The manager of the bar, a lady went to the counter to check . He could hear Macharia still demanding his change for Ksh 1000/= and saying that he was not leaving without his money. 3. That it was just then that the OCS who was known to the witness came in, sat at the counter and ordered a tusker beer. The manager, Macharia and the bar maid continued with their argument, quarrel. 4. Pw1 testified he saw the OCS get hold of Macharia, by the arm, then pulled him back and slap him on the face. Macharia said he was not leaving without his money, while demanding from the OCS why he was not believing his side of the story. That quarrel between the bar maid, Macharia and the manager was loud and attracted other people from the bar lodgings. 5. The witness testified that he saw the OCS get up from the counter, and came to the verandah where he was seated – he said he saw the OCS take out his pistol. And ‘load” it – then came back inside. He said he saw the OCS shoot Macharia in the arm, Macharia lifted his right arm, begging the OCS not to kill him. That the OCS however proceeded to shoot him in the chest at close range. The witness testified that he became scared and decided to leave by which time Macharia was on the floor. He testified that he and his friends crossed the road from the bar, and heard a gunshot. 6. He testified they went and woke up Macharia’s driver, and they all went back to the bar. He said the OCS was still seated at the counter drinking – and appeared to be drunk and Macharia was lying on the floor with blood all over the place 7. On cross-examination this witness told the court that the bar was on the ground floor of the building and next to a road. He testified that he saw everything; that there was sufficient light – from electricity, which kept going on and off but that there was a hurricane lamp in the veranda and a pressure lamp on the counter. 8. **PW2 Janet Nduke Paul Munguti** testified that she was the manager at Joyland Bar at Makindu on the night of 9/1/2012. One Veronica Munyao was the bar maid. She (PW2) was seated at the veranda when she heard the quarrel inside between the bar maid and the customer over Ksh 1000/=. 1. She testified that she went in to check on the quarrel. It was while the quarrel was ongoing that the OCS ( the accused person) of Makindu police station came in . She testified that OCS was a regular customer at the bar and was known to her. She testified that he sat at the counter, on the counter bar stools and ordered a drink. She testified that the OCS asked the bar maid what the quarrel was about . That the OCS asked the quarreling customer who he was the customer did not respond. The OCS took a gun from his waistband and shot customer. The witness said she heard 4 gunshots – but by the 2nd one, she ducked behind and under the counter. She testified that there was a pressure lamp, illuminating the place as electricity had gone off. 2. She testified that the Police officers came to the scene; there was a fracas from members of the public who wanted to know why the deceased was killed. She later recorded her statement. 3. On cross-examination she confirmed that the bar was supposed to have closed by 1100 pm – but was open after 1100 pm. 4. She testified that she was outside the door when she heard the quarrel – and went in. She testified that she was not aware that thugs had attacked Makindu shopping centre that night, she denied calling the police station to report an attack – she denied any knowledge that Veronica had phoned the police. 1. She testified that she recorded her statement twice – she said she did not tell the police that there was a boda boda operator who took drinks. She testified that in her 1st statement she recorded that the OCS came in with a boda boda operator and took drinks at the counter. She testified that she was chewing miraa with 2 others at the veranda, and she is the only one who went in, when she heard the quarrel. She testified that the OCS passed by where she was seated outside and he entered the bar – she testified that the OCS shot the deceased in the stomach. 2. She testified that the deceased was standing near the counter door when he was shot; that the OCS stood up, moved about 4 metres away from the deceased then shot him in the stomach. She testified that she and Veronica closed the counter door when the OCS draw his gun. She testified that she saw the OCS shoot the customer in the stomach. She testified that the OCS continued sitting at the bar after the shooting. She testified that the OCS was staggering and the police came and took him away and that members of the public became violent accusing her and Veronica of being friends with the OCS. She testified that though she identified the pistol in court her statement did not mention the pistol. She said she saw the 1st gunshot but did not see the others. She only heard three. 3. **PW3 Andrew Ndambia Mbilu** testified that Macharia was his turn boy, and on 8/1/2012 at 7:30 am, he was in Makindu to transport charcoal, and he left Macharia to load the charcoal. He said he left to sleep. At about 3:00 am he was woken up by some people who told him that his turn boy had been shot. He left with them to the scene. When he got there and through the window, he saw inside he said he was blood on the floor – and the accused was seated at the counter on a high stool with his head on the counter as if he was sleeping – he said he was afraid , and left. 1. He said when the police came they asked whether anyone knew the deceased. He said he knew him – the accused was escorted from the bar to the police car. 2. On cross-examination he testified that he did not know the accused before; that he and his turn boy ( Macharia) arrived in Makindu on 5/1/2012. He said he heard 2 gun shots at 4:30 am from where he was staying around 50 metres from the scene. He said he did not hear any shots before 3:00 am. 3. He said when he came to the bar – he saw only the accused, and the deceased in the bar. He said he did not know the source of the gun shots at 4:30 am. 4. **PW4 No. 90808 PC Simon Ngare** testified that on 9/1/2012 at 3:00 am he received a phone call from the Deputy OCS Makindu police station IP Titus Wanjala who informed him that the OCPD Madam Sarah Duncan had requested the officers to accompany him to a scene of crime at Makindu Joyland Bar & Restaurant. 5. He, CPL Karanja & C. I Agego accompanied the OCPD – and at the scene, he said they found the OCS, C.I Samuel Sericho at the door of the bar holding his Ceska pistol – asked by the OCPD what had happened he said he had hot a criminal. C.I Agego was directed to disarm the OCS, make the area safe. He took the Ceska pistol from the OCS checked for a cartridge in the chamber – made the area safe, ensured area was safe. There were no lights on the whole town. They entered the bar which was lit with lamps – there was a lady at the counter and the deceased was lying in a pool of blood. 6. The scenes of crime personnel were summoned – they came processed the scene. They found 4 spent cartridges, then took the body to the morgue 7. A postmortem was conducted on 11/1/2012 – and one bullet was found lodged in the body and it was handed over to this officer he identified the bullet * PMFI 1. 1. It was alleged that the accused had taken the Identity card of the deceased. A search was directed by the OCPD in the house of accused and IP Wanjala found the Identity card in the OCS top pocket and Deputy OCS read the name as Samuel Macharia Mason – the ID card was handed over to the Investigating Officer. He identified the four cartridges as PMFI 2 a b c d. He told the court that he accompanied the family of the deceased to the postmortem, but did not see the post mortem report. He said the accused was his immediate boss as the OCS. 2. On cross-examination he testified that on the material night when they got to the club there was no electricity and the place was lit by lantern lamps; he said there was no inventory of the bullet that was recovered from the body but that the pathologist recorded it and handed it over to him. He said there was an inventory for the items that were found at the scene. He said the spent cartridges were found by the scene of crime personnel. He said he was not aware that the accused had been confronted by anyone and had tried to defend himself – that when they arrived at the scene only the accused, deceased and bar attendant were present. 1. **PW5 Dr. Fredrick Okinyi** conducted the postmortem on 11/1/2012 on the body of Samson Macharia Mason between 9 – 11:00 am at Makindu Hospital. He produced the postmortem report as PEX 3*.*He made the following findings : 2. *the body of a Young African Male - 28 years old.* 3. *170 cm height, blood stained under wear.* 4. *Very pale, loss of excess blood.* 5. *Multiple gunshot wounds to the body – 5 guns shot wounds* 6. He drew a sketch of the body to demonstrate the gunshot wounds- 7. *Gunshot wound in right arm – bullet lodged, recovered.* 8. *Gunshot wound, left arm, shot went through no bullet recovered.* 9. *Gunshot wound – entry through left abdomen exit through the umbilicus lacerating intestines and blood vessels.* 10. *Gunshot lethal entry through left chest exit through the back and position of T-4 Ribs, caused injury to left lung and blood vessels.* 11. *Gunshot – entry through the posterior neck – bullet lodged, unable to retrieve* *cause of death – multiple gunshot wounds, one bullet recovered.* 1. On cross-examination he said it was safe to say only three bullets should have been recovered – that the one stuck on the neck could not be recovered for lack of requisite facilities. 2. **PW6 Johnstone Musyoki Mwongela** was the ballistics expert based at DCI Head Quarter Nairobi. After introducing his credentials, he testified that he had over 20 years’ experience in firearms identification and ballistics work. 3. He received a pistol cz 85b pistol serial number F 3952 – *one magazine – 4 rounds of ammunition, 3 fired bullets , 2 fired bullets.* He was to determine whether the pistol was capable of being fired; whether ammunition had been fired from the pistol; whether the four cartridges and the 2 fired bullets were fired from the pistol He found the following; * 1. *The pistol was a Ceska Pistol calibre 9mm in good mechanical condition capable of being fired. He test fired 3 bullets. He confirmed that the cartridge cases were fired from the said pistol; and the 2 bullets as well* 2. *He prepared the report dated 12/1/2012, produced it as PEX8, and the Exhibit Memo as PEX9* 3. *He produced the:* 1. *Ceska Pistol PEX 3* 2. *Magazine PEX4* 3. *4 Bullets PEX 5. a, b, c, d* 4. *3 fired bullets PEX 5. E, f, g* 5. *3 test cartridges PEX 5. H, I, j* 6. *4 fired cartridges PEX 6. a, b, c, d* 7. *2 fired bullets PEX7 (a), (b)* 1. On cross examination he told the court that he recovered four spent cartridges. He tested the firearm by shooting three rounds of ammunition. He said this Ceska Pistol had the capacity of 15 rounds of ammunition. He said the photographs were attached to the report. 2. **PW7 Amos Sergon** was Embu DCIO in 2012: But retired in 2022. On 9/1/2012 he received a call from the P P O Eastern Region, one Markus Ogola about an incident that had happened in Makueni where the OCS was alleged to have killed a civilian. He was directed to go to Makindu to conduct the investigation. He left for Makindu with his official Driver and car; and as they approached Makindu they found that the road was blocked by demonstrators but they got through and met the OCPD, the DC and local leaders. The people wanted the OCS arrested and escorted to Makindu law courts. He spoke to the members of the public, confirmed the arrest of the OCS and that he was in custody and was going to be taken to court – not Makindu but High Court at Machakos because the offence was murder. When it was confirmed that the OCS was under arrest the people opened the highway. 3. He was briefed by the OCPD and then proceeded to conduct investigations. * He visited the scene of crime. * He recorded witness statements. * He took over exhibits and the National Identity Card of the deceased and the (upper Kaunda suit where ID was found) * Firearms movement register. * After investigations he recommended that the accused be arraigned for murder contrary to section203 as read with section 204 of the Penal Code. 1. **PW8 No. 68779 CPL Peter Karanja** was in charge Arms and Ammunition at Makindu police station on 3/1/2012 when the OCS, C.I Sericho called him at 1730 hours and instructed him to issue him with Ceska pistol number 3952. The entry in the register showed that he issued ammunition 9 mm, 10 rounds. He produced the extract as PEx 10. He confirmed that the OCS was always on duty and was always issued with a firearm. 2. The prosecution closed its case. # The Defence Case 1. The accused was put on his defence . He made a sworn statement. he did not call any witness. 2. He testified that in 2012 he was the OCS Makindu – he said there was high crime rate along the Highway. 1. That on 9/1/2012 he learnt that there were thieves around the bar where this incident happened. He took a boda boda at 2:00 am and proceeded to the bar. He testified that he found an ongoing vurugu (altercation ) *between the bar owner and some men inside* . That he went to introduce himself as the OCS Makindu and four young men advanced towards him. He said there was no electricity. He testified that he saw one of the young men pull out a gun, while another grabbed him. He testified that he saw that his life was in danger and he shot one of them. When he did that the rest of the young men took off. 2. He told the court that he shot about four bullets. He said others ran away. He testified that he had no intention of killing anyone. He said he explained to his bosses but they decided that he had committed an offence. 3. On cross-examination he said he was rang by a young girl from the bar that there people planning to commit crime, that the people were armed, that there was a lorry on standby to ferry away the items. 4. He told the court that *he was alone as he could not get other police officers to go with him*. He stated as the OCS he could go to an operation alone. He said the deceased was among the three people who advanced – and that he is the one *“alichomoa bunduki”* ( who pulled out a gun). He said he shot 4 times *“kushtua hao watoke”. ( To scare them off)*. That the deceased was shot because he did not run away but advanced. He said he saw deceased *“akichomoa*” ( pulling out a gun) and could not know whether the others ran away with it. 1. He testified that the deceased came from behind him to take his gun, he shot him. 2. He testified that when he arrived there were 5 people, and there was quarrelling. 3. The defence closed its case.. # The Submissions 1. Counsel for the accused person filed written submissions. 2. He began by reiterating the evidence of the witnesses for the prosecution, and the defence testimony. 3. It is the position of the defence that the accused person acted in self defence? That the circumstances pertaining at the club at the time the incident happened created a situation where it appeared to him that he was in danger, hence that there was no malice aforethought. 4. It is submitted that for an accused person to be found guilty of murder the ingredients set out by section 203 of the Penal Code must be proved; - that the accused person caused the death of the person unlawfully and with malice a forethought as defined by section 206 of the same Act. 5. Citing ***Holmes in Common Law (Boston) Little Brown & Co. 1881 at page 53, 54*** counsel argues that there is a yardstick by which the court should decide whether or not the accused had formed the necessary malice aforethought. It states:- *“If the known present state of things is such that the act done will very certainly cause death, the probability is a matter of common knowledge the present state of things, is guilty of murder, and the law will not inquire whether he did actually foresee the consequences or not. The test of foresight is not what this very criminal foresaw, but what a man of reasonable prudence would have foreseen.”* 1. Counsel also cites from the Article **“Subjection and Objective Mens** **Rea” (1975) 17 Crim. L.Q. 355** at page 359 which discusses the distinctions between subjective foresight and objective foreseeability in the following passage. *“ What is important in the context of proof of mens rea is that certain objective descriptions of actions are in themselves descriptions of intentional actions, so that once the crown has proved what happened, they have established their case, and need not go on to prove separately the existence of some particular event or condition in the agent’s mind. In these cases, proof of the external behavior is proof that he can show he was not a voluntary agent, is to show that the objective description offered by the crime is incorrect, by producing witnesses who described as an incident what the crown witnesses described as intentional, by showing e.g., that he did not push the victim but accidentally fell against him.”* 1. He argues further that the evidence and facts must prove mens rea and it is the position of the defence. To support this, he cites **R v Vaillancourt,** **[1987] 2 S.C.R. 636** where it was stated ; *“The principles of fundamental justice require mens rea reflecting the particular nature of that crime namely one referable to causing death. In addition to the intention to cause death, this can include closely related intention such as intention to cause bodily harm likely to result in death with recklessness as to that result.” (Emphasis added*) 1. To bring the principles set out in the English case home counsel referred the court to **section 206 of the Penal Code** and the holding in [Nzuki v Republic [1993] KECA 83 (KLR)](https://new.kenyalaw.org/akn/ke/judgment/keca/1993/83/eng%401993-07-30) where it was stated; *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:* 1. *The intention to cause death;* 2. *The intention to cause grievous bodily harm;* 3. *Where the accused knows that there is a serious risk that death or grievous bodily harm will ensue from these acts, and commits those acts deliberately and without lawful excuse the intention to expose a potential victim to that risk as the result of those acts.* *It does not mater in such circumstances whether the accused desires those consequences to ensue or not and in none of these cases does it matter that the act and the intention were aimed at a potential victim other than the one who succumbed.* *Without an intention of one of these three types, 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 the crime of murder.* 1. The court is further referred to **Tebere s/o Ochen v R (1945) 12 EACA** **63** for what is required to prove malice aforethought beyond a reasonable, it was stated:- *“Intention is to be manifested in the various acts of the accused for a positive inference to be drawn in favour of the prosecution. Thus, the prosecution must show the nature of the weapon in possession of the accused, the manner it was used, the severity of the injuries inflicted and vulnerable parts of the body targeted and finally the conduct of the accused person.”* ( Emphasis added) 1. It is submitted that the accused was arrested while at his home that he was not found in the bar as alleged by one witness. 2. Further that the accused acted as a responsible police officer who could not risk the loss of his firearm to robbers. That such a loss would have led to dire consequences – see **Kabia v R [2022] eKLR** where the court upheld a conviction whereby the appellant was charged under section 18(3)(4) of the firearms Act, Cap 114 Laws of Kenya of failing to take all reasonable precautions to ensure that the firearm & ammunition were not stolen. 1. On the prevailing circumstances in counsel submitted that the lighting was poor in the bar, the lamps must have cast shadows and the accused having been told about the chaos in the bar and that he must have thought these people were bad people hence his reaction as he said he saw one appear to pull out a gun. That it was not clear where the accused and deceased were standing at the time of the incident and the poor lights and shadows could have limited the accused person’s visibility having an impact on what the accused saw/heard. 1. It was submitted that other witnesses testified that there were other gun shots long after the incident – an indication that there were criminals in town who were either being pursued /were causing havoc in town. 2. Counsel submitted that the PW4 testified that he found only the accused, deceased, and a bar maid at the scene – and the evidence of witnesses that the accused was drunk or continued drinking after the incident was not corroborated by the Investigating Officer who said that the accused even read out the names of the deceased from the deceased’s ID Card. 3. Counsel challenged the ballistics evidence. He submitted that the evidence was baffling – as between the spent cartridges and the bullets retrieved from the scene there were unanswered questions. That prosecution evidence was that 4 spent cartridges were recovered from the scene yet deceased had 5 gunshot wounds according to the pathologist (PW6) – that the ballistics expert received 3 fired cartridges, 3 fired bullets, 4 fired cartridges – that no explanation was given by the prosecution as to how the deceased could have more gunshot wounds than the bullets fired form the gun. 4. Counsel submitted that the only plausible reason/determination is that the deceased was a suspect robber, who walked in, while already with a gunshot wound/bullet in his body, and he tried to snatch the gun from the accused who was in the club after introducing himself in an effort to quiet the fight in the club. 1. Counsel submitted that Section 61 of the National Police Service Act Schedule 6 empowers police officers to use firearms force to protect life, self defence/defence of a person against imminent threat of life/serious injury. It was submitted that the accused introduced himself as the OCS but the deceased and other young men charged towards him, he fired shots in an effort to deter them from shooting at him or stealing his weapon. It is argued that the accused used reasonable force in the circumstances as he was being attacked by people in a dimly lit club. That the accused acted reasonably after he was called from his house to come and uphold the law. The court is urged to find that he acted reasonably, and that he should not be punished for discharging his duties. The court is urged to find that the prosecution has not proved the charge beyond a reasonable doubt and to acquit him accordingly. 2. At the time of writing this Judgment, I did not see any submissions by the prosecution despite their telling the court that they would file – there were none on the court file and none on CTS. (1658 HRS 21/4/2026). # Analysis and Determination 1. I have carefully considered the evidence on record taken by Hon. Lady Justice B. Jaden, and the evidence I took myself, and the submissions by the defence. It is evident that the matter has stayed for really long in the system, 2012 to date 2016=14 years. 2. Never the less I found the following to be the issues for determination :– 3. *Whether the prosecution have established the ingredients of murder, as set out by section 203, and section 206 of the penal code.* 4. *Whether the accused person acted in self defence and reasonably.* 5. *Whether the ballistics evidence, and that of the Pathologist is baffling hence leaving some questions not answered.* 6. *what orders this court should make.* 7. I start with the whether **the ballistics evidence and the pathologist’s evidence** as presented left questions unanswered. 8. PW4 told the court four spent cartridges were recovered at the scene. He attended the postmortem where the pathologist recovered one bullet from the body of the deceased which was handed to him – and witnessed one bullet lodged in the body of the deceased. 9. It is not in dispute that PW6 the doctor/pathologist found 5 gunshot wounds on the deceased – 10. *– a bullet was lodged in the right arm.* 11. *– a gunshot wound through the left arm.* 12. *- an entry gunshot wound in the left abdomen exiting through umbilicus injury to intestines.* 13. *– an exit gunshot wound entry through left chest, exit through back – injuries to lungs.* 14. *– entry gunshot wound 5 mm lodged in(neck)* 15. PW7, the ballistics expert received the pistol, 7 rounds of live ammunition; 9 mm, 4 spent cartridges, one bullet head recovered at the scene, one bullet head recovered from right arm of deceased, one magazine. 16. He was required to ascertain whether the pistol could be fitted with the live ammunition, whether the spent cartridges were fired from the pistol; whether the bullet heads – recovered from the scene and the body of the deceased could have been fired from the pistol. He was to determine the calibre of the spent cartridges, and the calibre of the bullet heads. 17. He testified that he test fired three rounds of the live ammunition and obtained 3 spent cartridges, and 3 bullet heads which he used to test the four spent cartridges, and the 2 bullet heads. 18. Upon comparison, he was of the view that the four spent cartridges, and the 2 bullet heads were fired form the same pistol – Ceska F 3952 that was issued to accused on 3/1/2012 – with 10 rounds of ammunition. 19. The evidence that is before me is that the accused person was issued with a Ceska pistol on 3/1/2012 with 10 rounds of ammunition. There is no dispute that he fired a number of bullets at the deceased person at scene. He said he fired *about* 4 bullets. The PW2 Bar manager said she heard four gun shots. The circumstances under which this happened it is possible that she did not count as she took cover after the first gunshot. At least 4 bullets were fired from the accused’s pistol.. However, what must be remembered here is that no one was counting. There was fear in the air and people were taking cover. PW2 hid under the counter. 20. Of significant importance here is that no evidence of the shooting from any other firearm was found at the scene. 21. The submissions by the defence that the deceased came to the scene with a bullet lodged in his arm is not tenable because the alleged fact is not supported by the evidence on record. No questions were put to any of the witnesses about this. The evidence I have before me is that when Macharia arrived at the scene there no evidence that he was bleeding or in any pain. He passed by PW1 and PW2. He gave the bar maid money and ordered a soda. An argument ensued and this went on for a while . PW2 joined the Macharia and the bar attendant inside to intervene. None of the witnesses at the scene noticed anything about Macharia. There is no evidence that before Macharia arrived there were any other gunshots heard nearby 22. The evidence before me is that the five gunshot wounds could not have been caused by anyone other gun shots other that the ones fired by the accused. In any event the most lethal is the one that went through the chest piercing the lung and blood vessel. That came from the accused’s pistol as the spent cartridge was found at the scene. 23. The evidence that is before this court is that it is the accused who was armed and it is him who shot the deceased. The number of bullets fired is unclear because he himself also stated in his testimony that he shot **abou**t 4. The lack of recovery of cartridges is not proof that the shots were not fired. Shots were fired by the accused into the deceased and the multiplicity of the wounds led to loss of blood, death. There is no evidence that that the deceased had any gunshot wound when he arrived at Joyland bar that night.. # Whether the accused acted in self defence 1. Counsel submitted about the circumstances pertaining at the time when the incident happened, He spoke about lighting and shadows, that could have misled the accused as to whet he heard or saw. However, these were submissions, not evidence. The accused person said nothing about the light or shadows. He said he saw one of the young men ***‘chomoa’*** or pull out a gun. He did not say anything about the light or the shadows. 1. On the principles applicable to self defence I found guidance in [Lucy Mueni Mutava v Republic [2019] KECA 661 (KLR)](https://new.kenyalaw.org/akn/ke/judgment/keca/2019/661/eng%402019-05-28). Th court referring to the appellant in that case observed 2. *Equally, her defence of self defence does not hold water. This is because as was correctly observed by the trial court there was no mention that the deceased had attempted or threatened to attack the appellant with the panga that she alleged he was armed with. In point of fact, in her own testimony, the appellant stated that the deceased* *“…he got hold of me and pushed me slowly to my house so as to make love.”* *Besides, the multiple cut injuries she inflicted on the deceased at the back of his neck which led to the spinal cord being severed, in our view, was way excessive and negated any defence of self defence, if any, in light of the surrounding circumstances. See* ***Racho Kuno Hameso vs. R [2014] eKLR.*** 1. The court then stated further 2. *Our position is further fortified by the case of* ***Victor Nthiga Kiruthu & another vs. R [2017] eKLR*** *wherein this Court while discussing self defence stated*: *“The principles that have emerged from these and other authorities are as follows: -* * 1. *Self defence, as the term suggests, is defence of self. It is the* *use of force or threat to use force to defend one self, one’s family or one’s property from a real or threatened attack. Self defence is therefore a justification in the application of force recognized by the common law.* * 1. *The law generally abhors the use of force or violence, but there are instances when a person is justified in using a reasonable amount of force in self defence if he or she believes that the danger of bodily harm is imminent and that force is necessary to repel it, meaning that the force must be necessary and that it must be reasonable.* 2. *It is not necessary, however, for there to be an actual attack in progress before the accused may use force in self defence. It is sufficient if he apprehends an attack and uses force to prevent it.* 3. *The danger the accused apprehends however must be sufficiently specific or imminent to justify the action he takes and must be of a nature which could not reasonably be met by mere pacific means.* 4. *What amounts to reasonable force is a matter of fact to be determined from evidence and the circumstances of each case. [Emphasis added]* 1. The accused person’s case is that he there was imminent danger, as he was called to attend to an ongoing robbery. The evidence of PW2 who was one of the alleged victims of the robbery does not support that accused’s evidence that there was an ongoing robbery. She testified that one customer was arguing with the bar maid. There was no one else at the counter other than herself, the bar attendant and Macharia when the accused arrived , ordered a beer and sat at the counter drinking. It was from this same position that he got up to shoot Macharia. She saw him shoot the deceased and ducked under the counter. Even after the deceased fell the accused continued to shoot him. According to her, they were standing there; herself, the bar attendant , Macharia and the OCS. That when the OCS began to shoot it was just them who were there at the counter. Hence the accused’s testimony that he was acting in self defence does not hold water. This position is fortified by **the injuries** # inflicted on the deceased. The number of gun shots, the number of gunshot wounds negated the notion that this was in self defence. 1. I found further guidance from the Court of Appeal in **Ahmed Mohammed Omar & 5 others v Republic [2014] KECA 515 (KLR)** where the court expounded on the application of **Section 17 Penal Code** on self defence. The court said; ***Section 17*** *of the* ***Penal Code*** *states that:* ***“17. Subject to any express provisions in this Code or any other law in operation in Kenya, criminal responsibility for the use of force in the defence of person or property shall be determined according to the principles of English Common Law.”*** *What are the common law principles relating to self defence? The classic pronouncement on this issue and which has been severally cited by this Court is that of the Privy Council in* ***PALMER v R [1971] A.C. 814****. The decision was approved and followed by the Court of Appeal in* ***R v McINNES, 55 Cr. App. R. 551****. Lord Morris, delivering the judgment of the Board, said:* ***“It is both good law and good sense that a man who is attacked*** ***may defend himself. It is both good law and common sense that he may do, but may only do, what is reasonably necessary. But everything will depend upon the particular facts and circumstances. …. Some attacks may be serious and dangerous. Others may not be. If there is some relatively minor attack, it would not be common sense to permit some act of retaliation which was wholly out of proportion to the necessities of the situation. If an attack is serious so that it puts someone in immediate peril, then immediate defensive action may be necessary. If the moment is one of crisis for someone in immediate danger, he may have to avert the danger by some instant reaction. If the attack is over and no sort of peril remains, then the employment of force may be way of revenge or punishment or by way of paying off an old score or may be pure aggression. There may be no longer any link with a necessity of defence. ….. The defence of self- defence either succeeds so as to result in an acquittal or it is disproved, in which case as a defence it is rejected. In a homicide case the circumstances may be such that it will become an issue as to whether there was provocation so that the verdict might be one of manslaughter. Any other possible issues will remain. If in any case the view is possible that the intent necessary to constitute the crime of murder was lacking, then the matter would be left to the jury.”*** *According to* ***ARCHBOLD – Criminal Pleading, Evidence and Practice 2002****, paragraph 19-42, the test of whether force used in self defence was reasonable is not purely objective.* ***“There is no rule of law that a man must wait until he is struck*** ***before striking in self defence.” R v DEANA, 2 Cr. APP. R. 75, CCA*** 1. The court cited **Robert Kinuthia Mungai –vs- R.[1982-88) I KAR 611 where** *…the appellant visited a lady friend at her house and at 4.30 a.m., they were awakened by the deceased, who was also a boyfriend of the lady. He uttered threats to kill them both and attempted to strangle the lady. He also threw a hurricane lamp at the appellant and a piece of glass cut him above the eye. The appellant took his gun, which he was licenced to carry, and fired into the air. The deceased was not deterred, he continued with his threats. The appellant, fearing for the life of the lady, shot the deceased and killed him. The appellant was charged with murder but the High Court convicted him for manslaughter. On appeal, this Court held that the appellant had acted in the course of defence of the person and also for the purpose of preventing a felony and quashed the conviction*. **…** *that it is a doctrine recognized in East Africa that excessive use of force in the defence of the person or property, whether or not there is an element of provocation present, may be sufficient for the Court to regard the offence not as murder but as manslaughter. But if the defence of self-defence is upheld, a conviction for murder cannot be* *sustained***.** 1. This case is distinguishable from [Ahmed Mohammed Omar & 5 others v Republic above](https://new.kenyalaw.org/akn/ke/judgment/keca/2014/515/eng%402014-06-27) where the court of appeal found that the appellants had acted in self defence and set aside the conviction for murder. The CoA stated: *We have already stated that the shoot out occurred at night when there* *was no good visibility. The appellants identified themselves as police officers and fired at least twice into the air to disperse the deceased but the deceased kept advancing. In these recent days when so many police officers are being killed in the line of duty by armed criminals, the appellants, not knowing that there had been physical confrontation between the taxi operators and motor cycle operators, could have reasonably believed that their lives were in danger and decided to open fire. As held in DEANE v R (Supra), in such circumstances, a police officer cannot wait until he is struck before striking in self-defence. The learned trial Judge rightly observed that police officers “perform their duties in circumstances that are often fraught with danger to their lives, it is not an easy job.” That notwithstanding, the trial court blamed the police for shooting live bullets towards the taxi drivers.* *We pause here to state that the appellants had not been dispatched to Kawangware to quell a reported commotion between two feuding groups of people. They had therefore not been issued with plastic bullets which are ordinarily used against rioters. They had been issued with guns and live bullets. The 1st, 2nd, 3rd and 6th appellants were on patrol duties at night, in an area that is famous for criminal notoriety at night. They heard someone screaming – “don’t kill me, don’t kill me”. It was about 12.30 a.m. They fired twice into the air. Undeterred by the warning shots, the deceased, who were armed with pangas, swords and what looked like a gun, confronted the appellants. We think, in the circumstances, the appellants reasonably believed that their lives were in danger or were in danger of serious bodily injury...* 1. There was no evidence of imminent danger to the accused or those he found at the scene. The accused person told the court that he received a call at about 2:00am of an ongoing robbery/theft at the Joyland Bar. He took a boda boda and went to the scene alone. I am aware of the weight of the work of the police. However, there are rules and procedures. The OCS did not explain why he would go to an ongoing robbery by armed robbers alone. I must make it clear that this is not intended to belittle the work of the OCS but I found that evidence not to be credible. He was the Officer Commanding Station. It is not tenable that he would receive a call about an ongoing armed robbery and proceed to the scene alone. there is a reason why police officers book out on operations in teams of two or more. It is always with another, and the saying is one gun protects the other; There are circumstances when a police officer is out there on his own doing his own things and a robbery begins to take place in his presence, obviously it would be understandable that he would take reasonable action pending the arrival of reinforcements. That is not the case here. 1. The clear evidence presented by the prosecution in this case is that the accused was drinking in the bar, he intervened in the quarrel between the barmaid , the bar manager and the deceased who was already in rage because of the quarrel he had with the bar maid. PW2 the bar manager does not mention there being any threat from the deceased or any other person in the bar. Prosecution witnesses testified that indeed it was the accused who confronted the deceased. He said that he went to introduce himself but he did not believe that he was the OCS. PW1 and PW2’s testimony is that it is the accused person confronted the deceased person, and that is how the shooting happened. 2. The accused person testified that he shot at three or four young men who confronted him and the others scattered but the deceased kept advancing and that is why he kept shooting. However, it is clear from the evidence that upon the first shot the deceased was injured and was heard to cry out to accused not to kill him. Despite the deceased not presenting any threat to him the accused continued to shoot bullets at him. All the bullets were aimed at one person and the bullets he shot entered the body the deceased. The only explanation available for this is that there was no one else other than the deceased. 1. There is the law on the use of firearms. The Police Standing Orders in the National Police Act at Chapter 58 states inter alia *. (1) The use of a firearm against any person places a legal and moral responsibility on a police officer and there should be no doubt in his or her mind of the circumstances in which he or she is justified in using his or her firearm or in which his or her duty compels him or her to use it.* *(2) legal provision for the use of firearms by police officers is laid down in the Sixth Schedule of the National Police Service Act, 2011.* 1. *Firearms may only be used when less extreme means are inadequate and for the following purposes—* 1. *saving or protecting the life of the officer or other person; or* 2. *in self-defence or in defence of other person against imminent threat of life or serious injury* *.3. An officer intending to use firearms shall identify themselves and give clear warning of their intention to use firearms, with sufficient time for the warning to be observed****, except where doing so would place the officer or other person at risk of death or serious harm or if it would be clearly inappropriate or pointless in the circumstances.*** *4.A police officer shall make every effort to avoid the use of firearms, especially against children.* *5….* *6…* 1. The evidence before court does not paint a picture of any imminent danger to the woman who was arguing with the deceased and even when PW2 joined her there was no evidence that the two women were in any danger. Even when the accused person arrived, the evidence is that the argument was about the change Macharia was demanding from the bar attendant, and nothing else there was no violence or threat of violence from the deceased or any other customer. Hence the circumstances even as presented by the accused person do not paint a dangerous situation to warrant the kind of force the accused person used in the circumstances. In addition – the accused person did not warn the deceased, or order him to surrender, he had no intention of arresting/immobilizing him:- # Was there malice aforethought on the part of the accused? 1. **Section 206 of the Penal Code** defines malice aforethought, - that it is provided by evidence of one and several circumstances:-An intention to cause death/grievous harm, whether the person is killed or not – the accused person continued to shoot the deceased, even after he had injured him; he knew – that the act of shooting him could cause death/grievous harm. The accused raised the defence of self defence. 2. I found assistance in [Republic v Benjamin Kahindi Changawa & another [2018] KEHC 431 (KLR)](https://new.kenyalaw.org/akn/ke/judgment/kehc/2018/431/eng%402018-11-14) where the court dealing with a similar situation and considering whether or not the accused persons had malice aforethought had this to say *In considering whether the accused persons had malice aforethought this court has taken into account all the surrounding circumstances of this case.* ***In N M W v. Republic [2018] eKLR the Court of Appeal, citing with approval the case of Bonaya Tutu Ipu & another v. Republic [2015] eKLR*** *stated that: “It is in rare circumstances that the intention to cause death is proved by direct evidence. More frequently, that intention is established by or inferred from the surrounding circumstances. In the persuasive decision of* ***Chesakit v. Uganda, Cr. App. No. 95 of 2004, the Court of Appeal of Uganda*** *stated that in determining in 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.”( emphasis mine)* 1. The conviction was upheld by the Court of Appeal in [Benjamin Kahindi Changawa & another v Republic [2020] KECA 594 (KLR)](https://new.kenyalaw.org/akn/ke/judgment/keca/2020/594/eng%402020-06-19) where the court stated; *Having carried out our duty as a first appellate court by subjecting the evidence to fresh evaluation and looking at the evidence and the circumstances of the incident in totality, like the learned Judge, we come to the conclusion that the deceased persons were not robbers; that though APC Onchuru was armed, he never attempted to use his firearm on the appellants; that though he had an opportunity to use it as the watchman harassed him, he allowed himself to be pushed into the kitchen and locked up; that his two colleagues were not armed at all and were lying down in submission when they were shot; that shooting unarmed and helpless persons was unjustified; that APC Onchuru’s only blunder was that he misread the implications of his failure to identify* *himself in such crime prone area and in wee hours of the night; that his conduct and those of his colleagues did not justify the kind of all-out attack meted on them; that the attack did not come within section 17 of the Penal Code as there was no immediate threat of being attacked or that they were in any imminent danger of being attacked; and that the violence they used was, in the circumstances, unlawful. The offence of murder was, for these reasons established beyond any reasonable doubt and to that extent the appeal on conviction fails and is accordingly dismissed*. 1. The accused had a gun . The weapon used was a gun. The injuries draw a picture of a person whose arms may have been raised as both bore gunshot wounds. One went in through the left abdomen, the other through the left chest, the other was lodged in the chest. These were not injuries intended to immobilise. 2. This is the action the accused person stated was in self defence. The authorities, and section 17 of the Penal Code are clear that – if a man is attacked, he may defend himself by doing what is reasonably necessary. It is a matter of common sense depending on the facts and on circumstances – a matter of ***“proportion to the necessities of the situation.”*** In this case the evidence is that the first shot caught the deceased – and there was no shot fired back – the deceased and even if the accused thought he saw a gun , the deceased did not retaliate in any way. It is the accused’s statement that the others ran off – hence – there was no remaining peril/danger to deal with. The continued shooting of the deceased presents itself as other than an act to avert danger – and may well have been ***“ revenge or punishment … or an act of pure aggression.”*** The evidence speaks for itself that there was no longer a link between the action of firing the gun by the accused with the necessity of defence. No provocation was established on the part of the deceased to warrant the force applied by the accused person. In the circumstances the defence of self defence fails. 1. I have considered all the evidence and the surrounding circumstances, and the finding that comes upon the facts before me and a consideration of the authorities and the law is that the prosecution has established that the accused person unlawfully caused the death of the deceased, the manner in which he shot him, going by **NMW v R** *above* demonstrated malice aforethought. I find that the charge of murder contrary to section 203 as read with section 204 of the Penal Code has been proved. I find the accused person guilty as charged and convict him accordingly. **JUDGMENT** dated, signed and delivered virtually this 8th May 2026 Mumbua T Matheka Judge CA Chrispol Accused present Mr. Hassan for the Accused Ms. Musango for State # Judgment HCCRC no. 231 of 2017 Page 2 of 2 SIGNED BY/FOR: LADY JUSTICE MATHEKA, TERESIA MUMBUA **★ TH E JUDICIAR Y O F KENY A ★** **LADY JUSTICE MATHEKA, TERESIA MUMBUA** Makueni High Court High Court Div Date: 2026-05-09 23:31:50