https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7330

Republic v Tarus (Criminal Case 53 of 2018) [2026] KEHC 7330 (KLR) (29 May 2026) (Judgment) Neutral citation: [2026] KEHC 7330 (KLR) Republic of Kenya In the High Court at Eldoret Criminal Case 53 of 2018 RN Nyakundi, J May 29, 2026 Between Republic Prosecution and David Kiplagat Tarus Accused Judgment 1.The Accused before Court was charged with the offence of murder contrary to Section 203 as read with Section 204 of the Penal Code. The particulars are that on the 28th day of July 2018 at Saramek village, Saramek Sub Location in Eldoret West Sub County, within Uasin Gishu County murdered Tecla Jepkosgei. 2.This far the Accused pleaded not guilty calling upon the State to disapprove his innocence in consonant with Article 50 (2) (a) of the Constitution. The lead Prosecution Counsel in this trial happen to be Ms Kirenge whereas the Defence was led by Dr. Chebii in navigating the trajectory of the Accused being held to be innocent in so far as the allegations pursuant to Section 203 of the Penal Code are concerned. 3.In pursuit of establishing their case beyond reasonable doubt, the following witnesses were lined up in line with the provisions of Section 107(1), 108, 109 & 112 of the Evidence Act. Thereafter, it shall be duty of this Court to establish whether the standard and burden of proof vested with the State has been discharged as to the existence and non-existence of certain facts so that judgment can be entered in their favor. 4.The 1st witness in this respect happen to be Mary Maiyo (PW1) who identified herself as a resident of Ziwa and the biological mother to the Accused. To the best of her recollection, she told the Court that the Accused person came to her house demanding to be paid some money. According to PW1 she told the Accused person that she did not have any money to advance and honor his request. In the course of that conversation the Accused could not hear of it, he stepped out from the location where he was engaging her about the money issue and simultaneously picked an axe and aimed at her with an intention to inflict physical injuries. It is the evidence of the PW1 that this axe was outside the house being used by one Kimurgor who later rushed to where the PW1 was to inform her that the Accused has armed himself with the same axe. It was in the very same chain of events that at the spur of the moment the Accused took the axe and cut the hand of the deceased. It was further the evidence of PW1 that the injuries inflicted to the deceased occasioned her to succumb to death. That murder weapon was positively identified by PW1 as the one used to inflict grievous injuries which later were to become fatal and the death of the deceased was pronounced including the medical evidence confirmation by the Pathologist who conducted the postmortem on the 1st of August 2018. 5.Next in line in support of the prosecution case was Dr. Nalianya a qualified Medical Doctor with specialty in Forensic Medicine commonly referred as Pathology with whom the diagnostic of the cause of death is one of their key professional skill set. In this respect PW2 testified that he was presented with the body of one Tecla Jepkosgei a female adult aged about 46 years whose body was lying at MTRH mortuary. In the course of examination, PW2 mad the following findings; that the deceased suffered cut wounds at proximal left arm-lateral aspect which was about 6cm long. As a result of his examination PW2 formed the opinion that the cause of death was soft tissue hemorrhages due to a cut wound. The postmortem report was admitted in evidence as Exhibit 2. 6.The next witness for the State is PW3 FK. This is a grandson to PW1 and a nephew to the Accused. In his evidence on oath, PW3 told Court that the deceased was his biological mother and he recalled on 27th July 2018 he was splitting firewood outside their home which belongs to PW1. The Accused came and had a discussion with PW1 as he continued to split the firewood. In a short while, PW3 heard screams from the mother now deceased with anxiety that David had come armed with an axe and is going to cut her. It did not take long PW3 saw the Accused got hold of his mother and at the same time PW1 screamed so that other members can come to the rescue of the deceased. However, that did not stop the Accused from inflicting serious harm of her left arm in which she was rushed to Ziwa Sirikwa Hospital or treatment. The Accused person thereafter absconded from the home as the deceased recuperated and they even had dinner together but in a little while she succumbed to death. In his further evidence he testified that he did not participate in identifying the body to the pathologist. 7.The next witness for the State happen to be Yona Okari (PW4) who told this Court that under instructions from the OCS he investigated this murder incident involving the Accused and his sister one Tecla Jepkosgei. In the chronology of events which captured the entire scene, PW4 told this Court that on the material day the Accused armed himself with an axe which was being used by PW3 to split firewood. According to PW4 during the confrontation the deceased in self defence used her hands as a shield but the accused person could not retreat but went ahead to cut her left hand severing it to a level where any treatment which was applied by the medical personnel at Ziwa Sirikwa could not salvage her right to life. That upon collection of the evidence a recommendation was made to charge the Accused person with an offence of murder contrary to Section 203 of the Penal Code. 8.This Court armed with the testimonies of the above witnesses on 16th December 2025 considered the evidence at half time pursuant to Section 306 of the Criminal Procedure Code and ruled in favour of the Prosecution that the Accused had a case to answer. The summary of the Defence case 9.The defence under the legal leadership of Dr. Chebii on behalf of the Accused person elected to adopt the model of a sworn statement of defence as a rejoinder to the evidence adduced by the Prosecution witnesses. The 1st witness in line was the Accused person who told the Court that he continues to deny the offence of murder and went further to explain to the Court that on 30th June 2018 he was at Soy following the aftermath of the death of his wife. This necessitated for him to have a discussion with his family with regard to this tragic event of the death of his wife. According to the Accused person the discussion revolved around the outstanding medical bill at Tophill Hospital which stood at approximately Ksh 200,000/=. It so happened that due to this outstanding bill some portion of land had been sold at Ksh 575,000/= to facilitate mitigation of the hospital bill. This was done but there was a balance of the purchase price which needed to be paid directly to him so that it will cater for children fees balances and other maintenance costs. This balance remained outstanding and it was the reason he went to the home of his mother (PW1) to pursue that refund. In pursuit of this issue, the Accused told the Court that he did involve his uncle Joshua and other clan elders to find an amicable solution. That was the very reason of how he came into contact of his mother (PW1) on the material day of 27th June 2018. She told the Accused that she had no money and therefore he retired for the day. It is on this material day of 27th when he alleged that he was attacked by Gideon, Tecla, Kibor, Tarus, Kimurgor and with his human fallibility he was overwhelmed as the mother was cheering up, “kill” “kill” however he managed to escape from the scene. He denied ever being involved in the death of the deceased. 10.The Accused in beefing up his defence summed the evidence of Wilson Tarus who told the Court that on the material day that the deceased died out of the conflict involving the Accused and other family members. That is the axe which was being used by Felix was used to inflict the fatal injuries to the deceased. In his reflection, he tried to intervene and separate the raged members to the conflict but it was not possible. 11.The final witness for the Accused was DW3 Stanley Kiptarus who identified himself as a brother to the Accused and the deceased as a sister. In terms of the background evidence the witness told the Court that the Accused person had gone to his home seeking a loan from their mother PW1 in the course of that visit and arrival at home Felix was using an axe to split firewood. In his observation of the occurrence of events, Felix is the one who first assaulted the Accused with the axe and not the Accused. 12.That forms both the direct and circumstantial evidence of the entire spectrum of the case for the Prosecution as answered in rebuttal by the defence. Brief submissions on behalf of the State 13.Learned Prosecution Counsel for the State Ms Kirenge as a form of just dessert to her case also canvassed the issues through the typology of a recap of the evidence and the applicable law to demonstrate to this Court that the standard and burden of proof of beyond reasonable doubt in so far as the charge of murder contrary to Section 203 of the Penal Code has been discharged without an iota of doubt. In support of the elements of murder which are now well settled, Learned Prosecution Counsel relied on the following authorities: R v Vickers [1957]/2 OB 664, Rex vs Tubere s/o Ochen [1945] 12EACA 63, Republic v Amboko (Criminal Case 36 of 2021) [20240 KEHC 14916 (KLR), R vs Lattimer (1886) 17 QBD 359, Peter Kiambi Muriuki v Republic [2013] KECA 452 (KLR) & Athuman Shushe Bahola v Republic [2014] KECA 818 (KLR). 14.In summation, this was the carrier statement by the Learned Counsel for the Prosecution demonstrating that the four elements of offence of murder being the death of the deceased, that her death was unlawfully caused, and further that the Accused executed the death unlawfully with malice aforethought contrary to Section 206 of the Penal Code and finally there is no dispute or doubt that the crime was committed by none other than the Accused. In addition, Learned Counsel for the Prosecution went further to state that the evidence that has been presented to this Court clearly shows that, on 27th July 2018, the Accused decided to make good his threats to his mother by holding up an axe intending to strike her to death but instead injured and killed his sister. By the time he held up an axe, of all the weapons or tools that he could have found in the house, he knew that the consequences on whoever the axe would befall would be damning. To this end, the state submits that the Accused had malice aforethought in that he had the intention to kill his mother because of the prevailing land and money dispute which sadly stemmed from his own incapacity in managing his resources and responsibilities. With that, from the foregoing, it is the Prosecution’s humble submissions that sufficient and consistent evidence has been tendered proving the Accused person’s guilt beyond reasonable doubt and therefore ask this Honorable Court to enter a finding of guilt herein. The Defence submissions 15.Learned Counsel for the Accused Dr. Chebii delved into the chronology of the litigation discourse by both the Prosecution and the Defence. In his hypothesis, Learned Counsel on interrogating the evidence vis-à-vis the elements of the offence of murder contrary to Section 203 of the Penal Code held a different view with that of the Prosecution. Learned Counsel further contended that the mens rea which is the one key fundamental elements of the offence as defined under Section 206 of the Penal Code was never discharged by the prosecution given the fact that the evidence in general pointed to a dysfunctional family. In this regard it was Learned Counsel’s observation that there have been previous grudges directed at the Accused person who was alleged to have been living in Soy and not in Ziwa where the offence took place. In addition, Learned Counsel invited the Court to evaluate the circumstances surrounding the allegations of murder in so far as the Accused person is concerned who came home on the material day to collect money due to him from the sale of land that belonged to him. According to the Learned Counsel that money has never been paid to date and that was the very reason why on 27th July 2018 he came home to pursue that refund from his mother. In Learned Counsel’s perspective the scuffle which ensued resulted in the death of the deceased who also suffered injuries as one of the family conspirators against the Accused. In Learned Counsel’s appreciation of the evidence and subsequent submissions he seems to be inviting the Court to lay blame and culpability for this offence squarely on the shoulders of one FK and not the Accused person. In furtherance of the arguments and submissions to dislodge the case for the Prosecution Learned Counsel made attempts to piece together the testimonies of the witnesses with a view to urge this Court to disparage the credibility of the evidence so that the Accused could end up with an acquittal. In framing and answering the questions to the hypothesis for the defence typology, Learned Counsel placed reliance on the following authorities: Kathambi v Republic (2022) KECA 1130 KLR, Safari Galgalo Komoro vs Republic [2007] eKLR, Obuon vs Republic [2003] 1 EA 209, Wilmington vs Director of Public Prosecutions (1935) A.C. 462, Rex v Abramovitoh (1914), Rex v Davies 29 times L.R. 350 & Okele v R. E.A 555 (CA). 16.The question which stands out to be answered by this Court is whether the Prosecution discharged the burden of proof on a balance of probabilities on the following elements:a.Proof that Tecla Jepkosgei is dead.b.That Tecla Jepkosgei’s death was unlawfully caused.c.That the Accused person had malice aforethought when he caused the deceased’s death.d.That the Accused person caused and/or participated in causing the death of Tecla Jepkosgei. Resolution 17.The burden of proof is at all material times vested with the Prosecution an institution created by the Constitution under Article 157 which spells out the roles, functions and duties of the Office of the Director of Public Prosecution (ODPP). As stated elsewhere in this judgment the pillar provisions on the burden of proof are expressly outlined in Section 107(1), 108, 109 & 112 of the Evidence Act. That is why it is settled law that the Prosecution must prove the guilt of an Accused person in whom a decision has been made to be indicted of the offence under Article 157(6) & (7) of the Constitution which mandate is exercisable by the Office of the DPP without any control and consent from any other Arm of Government. In essence, the burden of proof perpetually rests on the Prosecution and does not shift to the Accused person(s) except where there is a specific statutory provision and in our legal system it falls under Section 111 of the Evidence Act. However, notwithstanding that provision, the standard and burden of proof would never and has never been shifted to the Accused person. 18.There are a host of landmark decisions on this doctrine commonly referred to as the burden of proof, may it be in civil or criminal law, it is a threshold which must be bypassed by the Prosecution.In Miller vs Minister of Pensions [1947] 2 All E.R. 372 at page 373 to page 374, Lord Denning stated quite succinctly that:-"The degree of beyond reasonable doubt is well settled. It need not reach certainty, but it must carry a high degree of probability. Proof beyond reasonable doubt does not mean proof beyond the shadow of a doubt. The law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice. If evidence is so strong against a man as to leave only a remote possibility in his favour, which can be dismissed with a sentence: 'of course it is possible but not in the least probable', the case is proved beyond reasonable doubt; but nothing short of that will suffice."Similar, in Andrea Obonyo & Ors. V. R. [1962] E.A. 542, the Court stated at p. 550 as follows: "As to the standard of proof required in criminal cases DENNING, L.J. (as he then was), had this to say in Bater v. Bater [1950] 2 All E.R. 458 at 459: 'It is true that by our law there is a higher standard of proof in criminal cases than in civil cases, but this is subject to the qualification that there is no absolute standard in either case. In criminal cases, the charge must be proved beyond reasonable doubt, but there may be degrees of proof within that standard. Many great judges have said that, in proportion as the crime is enormous, so ought the proof to be clear." That passage was approved in Hornal v. Neuberger Products Ltd. [1956] 3 All E.R. 970, and in Henry H. Ilanga v. M. Manyoka [1961] E.A. 705 (С.А.).Further, in Hornal v. Neuberger Products Ltd., Hodson, L.J., cited with approval the following passage from Kenny's Outlines Of Criminal Law (16th Edn.), at p. 416: 'A larger minimum of proof is necessary to support an accusation of crime than will suffice when the charge is only of a civil nature.... in criminal cases the burden rests upon the prosecution to prove that the accused is guilty 'beyond reasonable doubt'. When therefore the case for the prosecution is closed after sufficient evidence has been adduced to necessitate an answer from the defence, the defence need do no more than show that there is reasonable doubt as to the guilt of the accused. See R. v. Stoddart (1909) 2 Cr. App. Rep. 217 at p. 242........ ... [I]n criminal cases the presumption of innocence is still stronger, and accordingly a still higher minimum of evidence required; and the more heinous the crime the higher will be this minimum of necessary proof. Where, on the evidence adduced before Court, there exists only а remote possibility of the innocence of an Accused person, it would mean the Prosecution has proved its case beyond reasonable doubt; hence, the Prosecution would have conclusively discharged the burden that lay on it to prove the guilt of the Accused. In Obar s/0 Nyarongo v. Reginam (1955) 22 E.A.C.A. 422, at p. 424 the Court held that:"We think it apt here to cite a passage from the recent Privy Council case of Chan Kau v. The Queen (1952) W.L.R. 192. ... At p. 194 Lord Tucker said this: 'Since the decision of the House of Lords in Woolmington v. Director of Public Prosecutions (1935) A.C. 462; and Mancini v. Director of Public Prosecutions 28 C.A.R. 65; it is clear that the rule with regard to the onus of proof in cases of murder and manslaughter is of general application and permits of no exceptions save only in the case of insanity, which is not strictly a defence." 19.In overall, this case is based on both direct and circumstantial evidence. When it comes to circumstantial evidence, the Courts have distilled the issues in many jurisprudential decisions and purpose of expedience a sample of the definition dimension of what constitutes circumstantial evidence, is herein under cited:In Republic vs Ahmad Abdolfadhi Mohammed & Anor 2019 eKLR as follows: “55. The law on the definition, application and reliability of circumstantial evidence, has, for decades been well settled in common law as well as other jurisdictions. Circumstantial evidence is “indirect [or] oblique evidence … that is not given by eyewitness testimony.” It is “[a]n indirect form of proof, permitting inferences from the circumstances surrounding disputed questions of fact.” It is also said to be “[e]vidence of some collateral fact, from which the existence or non- existence of some fact in question may be inferred as a probable consequence….”[……..59.To be the sole basis of a conviction in a criminal charge, circumstantial evidence should also not only be relevant, reasonable and not speculative, but also, in the words of the Indian Supreme Court, “the circumstances from which the conclusion of guilt is to be drawn should in the first instance be fully established….” As was stated in the case of Kipkering Arap Koskei & Another v. R (1949) 16 EACA 135, a locus classicus case on reliance of circumstantial evidence in our jurisdiction, for guilt to be inferred from circumstantial evidence the “...the inculpatory facts must be incompatible with the innocence of the accused and incapable of explanation upon any other reasonable hypothesis than that of his guilt, …” 20.The comparative decision in Anjan Kumar Sarma & Others versus. State of Assam (2017) 14 SCC 359, it was observed as follows on the well settled principles of what is commonly known as the best evidence in proving facts in issue:“a.The circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned “must” or “should” and not “may be” established;b.The facts so established be consistent only with the hypothesis of the guilt of the accused, that the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty;c.The circumstances should be of a conclusive nature and tendency;d.They should exclude every possible hypothesis except the one to be proved; ande.There must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.” 21.Direct evidence on the other hand is defined as proof that establishes a fact without the need of any inference or presumption. It typically consists of fast hand observations, what a witness saw, heard or experienced through their five senses. If believed direct evidence conclusive proves the facts in issue such as whether the Accused committed the offence or the crime in question. The following authorities sets out briefly the core guideline principles defining direct evidence:Thus in Chandmal v. Province of Rajasthan (AIR 1976 SC 917): This case highlights the distinction between direct and circumstantial evidence, establishing that direct evidence is firsthand, such as a witness seeing a murder. Whereas in Bodh Raj v. State of Jammu & Kashmir (2002 8 SCC): The Court discussed the necessity of proving circumstances, but noted that direct evidence (such as a confession or eyewitness) directly links the accused to the crime without need for inference. Similarly the Court further in State of UP v. Ravindra Prakash Mittal (AIR 1992 SC 2045): Emphasized that direct evidence, if reliable, is the best evidence to establish guilt. Finally in Ramavati Devi v. State of Bihar (AIR 1983 SC 16): Held that a dying declaration, if reliable, can be used to convict a person as direct evidence 22.From this analysis of the law direct evidence is often contrasted with circumstantial evidence which requires the Court to draw inferences. 23.On the first ingredient, on the death of a human being by the name Tecla Jepkosgei there is no dispute that she is dead. This is both from the Prosecution and Defence case. She was assaulted on 27th July 2018 in which she was diagnosed as having suffered the visible cut wound on the head. She was treated at Ziwa Sub County Hospital. However, she never recovered and on 28th July 2018 at 7.45 a.m. she succumbed to death. The postmortem report reveals that the cause of death remain to be soft tissue hemorrhages involving the left arm and left shoulder. The Prosecution evidence therefore through PW1, PW2, PW3, PW4, PW5 all point to the death of the deceased. This element has been proven beyond reasonable doubt. 24.The second element to be established by the Prosecution is that of the death being unlawfully caused and executed. In Article 26 of the Constitution on the right to life there is absolute preservation and/or protection of this right unless there is justification as provided under the law. Therefore, homicide unless accidental or authorized by law is always unlawful. See the case of Gusambizi s/o Wesonge versus Rep (1948) 15 EACA 65. This is what the law envisages on causation issues on homicide cases under Section 213 of the Penal Code which defines causing death:The death need not be caused by the immediate act of the accused. Section 213 of the Penal Code defines causing death to include acts which are not the immediate or sole causes of the death. The accused would be held responsible for another person's death although his act is not the immediate or sole cause under the following circumstances:(a) He inflicts bodily injury on another person and as a consequence of that injury the injured person undergoes a surgery or treatment which causes his death;(b) He inflicts injury on another which would not have caused death if the injured person had submitted to proper medical or surgical treatment or had proper precautions as to his mode of living: (c) He by actual or threatened violence causes such other person to perform an act which causes the death of such person, such an act being a means of avoiding such violence which in the circumstances appear natural to the person whose death is so caused: (d) He by any act hastens the death of a person suffering under any disease or injury which apart from such an act or omission would have caused the death; and (e) His act or omission would not have caused death unless it had been accompanied by an act or omission of the person killed or of other persons. 25.There is no dispute from the evidence of PW1, PW2, PW4, who happened to be at the scene when the chronology of events leading to the death of the deceased took effect. There is some piece of evidence that the Accused person prior to this fateful day had tragically experienced the death of his wife. Apparently there was some hospital bills to be paid and a family meeting was held which resolved that a portion of land earmarked for him be sold to settle the medical bills so that the body can be released to him for burial. The other limb of the evidence is that that portion of land having been sold and some released as a payout to settle the medical bills the balance of it was still due and owing from the mother PW1 in this case. This explanation was really touted as a defence in favour of the Accused and the events which ensued resulting in the assault of Tecla the sister to the Accused and daughter to PW1. This is indeed a family feud but can it be the reason of the Accused violating Article 26 of the Constitution on the right to life. The answer to me is in the negative. The defence proceeded and on oath so to say that on this material day of 27th July 2018 when the Accused demanded money from his mother PW1 she did not have in possession the so-called balance and quantum of the sale which was due for payment to the Accused. It is also further on record in terms of evidence that a conflict of some sort which in penal law is an affray though not in a public place involving family members and alluded to those facts include the Accused person, Felix (PW4), Gideon (PW2), Wilson (DW2) and Stanley Tarus. 26.This evidence when pieced together from the perspective of the defence is to invite this Court to plug in on the homicide having being infiltrated by the self defence and provocation on the part of the Accused who is stated to have been attacked by other family members. Can this evidence qualify as a self defence on the part of the Accused person so that the violence committed against the deceased will persuade the Court to discharge the Accused for the offence of murder or on the other hand reduce it to manslaughter? The answer to this question is of fundamental importance as deduced from the following case law:In the case of Republic v Mukaisi (Criminal Case 55 of 2018) [2024] KEHC 3005: The Court emphasized that the burden of disproving self-defence lies with the prosecution. The accused was found to have acted in self-defence when using a panga, as the prosecution failed to prove malice aforethought. The Court also in Beckford v R (1988) AC 130: A seminal case applied in many jurisdictions, establishing that if self-defence is raised, the prosecution must prove that the violence used by the accused was unlawful. Last but not least in Republic v Collet Tabitha Wafula [2016] eKLR: Examined the use of self-defence in the context of battered woman syndrome, now increasingly recognized as a form of self-defence or provocation, as noted in the Supreme Court of Kenya Petition No. E032 of 2023. 27.The principles of self defence are as provided under Section 17 of the Penal Code. As briefly articulated in the above cases, self defence operates within the following interpretation and construction of the law:(1)A person is not criminally responsible for an offence and the conduct is justified if he or she carried out the conduct constituting the offence in self-defence.(2)A person carries out conduct in self-defence if and only if he or she believes the conduct is necessary:(a)to defend himself or herself or another person; or(b)to prevent or terminate the unlawful imprisonment of himself or herself or another person; or(c)to protect property from unlawful appropriation, destruction, damage or interference; or(d)to prevent criminal trespass to any land or premises; or(e)to remove from any land or premises a person who is committing criminal trespass; and the conduct is a reasonable response in the circumstances as he or she perceives them.(3)This section does not apply if the person uses force that involves the intentional infliction of death or grievous harm:(a)to protect property;(b)to prevent criminal trespass; or(c)to remove a person who is committing criminal trespass. (4) This section does not apply if:(a)the person is responding to lawful conduct; and(b)he or she knew that the conduct was lawful. However, conduct is not lawful merely because the person carrying it out is not criminally responsible for it. 28.The other aspect which was featured though remotely is the aspect of provocation if the circumstances at the scene is anything to go by as alluded to by the defence. Why did this Court bring into perspective the provisions of Sections 207 & 208 of the Penal Code on provocation? It is by definition generally speaking provocation is some act or a series of acts done by the dead man or woman to the Accused which will cause in any reasonable person(s) and actually causes in the Accused as a sudden and a temporary loss of self-control rendering the Accused so subject to passion as to make him or her for the moment not master of his or her mind. Let me distinguish for the defence some of the things which provocation in law is not. The circumstances which nearly predispose to a violent act are not enough. In the second interpretation are what is referred to as severe nervous exasperation or a long course of conduct causing suffering and anxiety are not by themselves sufficient to constitute provocation in law. Thirdly a long course of cruel conduct maybe more blameworthy and a sudden act provoking retaliation but here you are not concerned with blame at the instance of the current circumstances so that one can attach blame to the dead man or woman. In applying these scenarios, it does not matter how cruel the Accused person feels he has been treated by his family for not being paid the balance for the sale of land or whatever description he gives it in the form of a loan, that is not what matters here. It is whether the sister Tecla ever did anything to provoke him within the definition of the doctrine under Section 207 & 208 of the Penal Code. Consequently, there is no evidence on the part of the defence that provocation inspired an actual intention to kill the deceased. 29.In my considered view cumulatively, the Prosecution has discharged the burden of proof that the deceased was killed by the accused person unlawfully and without excuse or justification. 30.In Kenya the term malice aforethought is part of the statutory law under Section 206 of the Penal Code which states as follows:Malice aforethought shall be deemed to be established by evidence proving any one or more of the following circumstances—(a)an intention to cause the death of or to do grievous harm to any person, whether that person is the person actually killed or not;(b)knowledge that the act or omission causing death will probably cause the death of or grievous harm to some person, whether that person is the person actually killed or not, 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. 31.When a man is charged with murder contrary to Section 203 of the Penal Code, the element of malice aforethought is manifested at various angles including whether the intention was to cause death against his or her victim, or on the other hand his or her intention was to cause grievous harm defined in our Penal Code as “any harm which amounts to a maim or dangerous harm, or seriously or permanently injures health, or which is likely to injure health, or which extends to permanent disfigurement or to any permanent or serious injury to any external or internal organ, membrane or sense.” On the other hand there is also the question of knowledge and foreseeability that the act or omission causing death was something which can be relatable to the accused person when one analyzes the chain of events which ultimately caused the death of the deceased. Malice aforethought is a term of art if the definition of the Chief Justice of Massachusetts is anything to go by as part of the discourse to exactly define and determine the existence or absence of it in the crime of murder. Thus;“Malice in this definition is used in a technical sense including not only anger, hatred and revenge, but every other unlawful and unjustifiable motive. It is not confined to ill-will toward one or more individuals, but is intended to denote an action flowing from any wicked and corrupt motive, a thing done malo aninio. where the fact has been attended with such circumstances as carry in them the plain indications of a heart regardless of social duty and fatally bent on mischief, and therefore malice is implied from any deliberate or cruel act against another, however sudden." 32.In essence, malice aforethought requires proof of intention to kill or to cause grievous harm. It does not necessarily prove of premeditation. This is a foundational element in murder cases whose origin is the English common law as the leading precedents from that jurisdiction portrays. DPP v Smith [1961] AC 290: The House of Lords ruled that an objective test applied to intent. A person was presumed to intend the natural and probable consequences of their actions. (Though later modified by statute, this case set the historical foundation for defining GBH) Hyam v DPP [1975] AC 55: The House of Lords held that foresight of the probability (or high degree of probability) that an act would cause death or serious bodily harm could amount to malice aforethought, even if the primary motive was something else. R v Moloney [1985] AC 905: The House of Lords clarified that foresight of consequences is simply evidence from which a jury can infer intent. The direction to the jury should focus on whether the result was a natural consequence and if the defendant foresaw it as such. R v Hancock and Shankland [1986] AC 455: The House of Lords refined the Moloney guidelines, emphasizing that the probability of death or serious injury must be high before an intention can be inferred. R v Nedrick [1986] 1 WLR 1025: The Court of Appeal established the definitive "virtual certainty" test. It ruled that a jury should not infer the necessary intent unless the harm caused was a virtual certainty of the defendant's action, and the defendant appreciated this. R v Woollin [1999] 1 AC 82: The House of Lords approved and finalized the Nedrick direction, making it the standard model for trial judges to explain "oblique intent." If death or serious harm was a virtual certainty and the defendant realized this, the jury is entitled to find the requisite malice aforethought. 33.In other words, malice aforethought is the mental element (mens rea) required for the crime of murder in English criminal law. It refers to the intention or state of mind of the defendant at the time of killing another person, encompassing both the intention to kill and the intention to cause grievous bodily harm. Despite its name, malice aforethought requires neither actual malice (ill-will or spite) nor premeditation; it is a technical legal term that describes the specific mental state that distinguishes murder from other forms of unlawful killing, such as manslaughter. 34.It is also trite that malice aforethought is manifested in two distinct forms which is considered sufficient to establish the mens rea for the offence of murder contrary to Section 203 of the Penal Code:a.Express malice: The intention to kill another human being. This is the most straightforward form, where the defendant's purpose is to cause death.b.Implied malice: The intention to cause grievous bodily harm (GBH), which is serious harm falling just short of death. Even if the defendant did not intend to kill, an intention to cause really serious injury suffices for murder if death results. 35.There is also the element of transferred malice which applies to malice aforethought essentially meaning that if the offender intended to kill or cause grievous harm to (b) but accidentally kills (c) the malice aforethought transfers to the actual victim. The explanatory notes for this are that a man who has formed the intention to carry out unlawful acts of omission of causing death against another and in an attempt to carry it out he happens to injure a third person who happens to be within the vicinity or the conflict zone is guilty of what the law deems to be malice aforethought against the person injured. 36.In our very own local jurisdiction the legal test on malice aforethought is derived from the landmark case of Tubere S/O Ochen (1945) EA in which the test infers malice aforethought by examining the weapon used, the targeted body part and the conduct of the accused. The other notable cases addressing malice aforethought include: Republic v. Obare (Criminal Case E016 of 2021) [2025] KEHC: The Court interrogated the elements of malice aforethought under Section 206, emphasizing that the prosecution must establish an intention to cause death or grievous harm beyond a reasonable doubt. Republic v. Jeremy Kiogora Mbae (Criminal Case 34 of 2014) [2019] KEHC: The Court ruled that fatal injuries (such as multiple stab wounds) inherently carry the presumption that the perpetrator knew their actions would cause death or grievous bodily harm, establishing malice aforethought. Republic v. Julius Karithi M'mubwanga [2018] KEHC: The Court found the accused guilty of murder after he attacked the deceased with a panga, noting that inflicting fatal injuries on vital body parts clearly demonstrates a conscious knowledge and disregard for human life. Republic v. Lepereen Lenengwesi (Murder Case 64 of 2010): The Court highlighted that severe, gruesome injuries—specifically a sliced stomach with exposed intestines—are undeniable indicators of an intention to inflict grievous harm or kill, fulfilling the requirements of malice aforethought. 37.What emerges from the narrative so far as this homicide is concerned is trial to the assault against the deceased as narrated to PW1, PW2 and PW3, there was some kind of conflict across the mother to the accused, Felix and the accused himself. It revolved around the question of money and land being paid out to the accused in connection to some land sale. It will also be recalled that however that the murder weapon was being used to split some firewood or wood within the homestead. There is direct evidence that the accused person took the murder weapon identified as an axe to directly target the deceased’s vulnerable parts of the left arm lateral aspect. As a result of the post mortem examination, the deceased suffered soft tissue hemorrhages due to a cut wound elongating to the left shoulder. It became very clear from the Pathologist that those injuries occasioned the deceased to succumb to death. In answer to the case advanced by the Prosecution the accused denied being the perpetrator of the crime of murder against the deceased. It is also in his defence that this was all about the money, about the land in a manner trying to shift blameworthiness to a third person including mentioning the name of Felix. It will, I think in my view that the structure in which the case for the Prosecution had been build and the accused called upon to answer it he was unable to controvert both direct and circumstantial evidence which incidentally laid bare that the accused was the primary perpetrator of this offence. The point I wish to emphasize is that with regard to the essential element constituting the crime of murder contrary to Section 203 of the Penal Code the evidence by the witnesses remained unshaken in so far as the events of the material day is concerned when the deceased met her death. There was strong evidence that there is no doubt on identification of the accused as the one who occasioned the death of his sister upon assaulting her with an axe. She then later had to suffer severe hemorrhage and from the post-mortem report she passed on 28th of July 2018 and the post mortem conducted on 1st August 2018. The objective test for bodily injury is sufficient in the ordinary cause of nature for this Court to conclude that the accused intended to inflict that specific injury which was intrinsically fatal. The evidence by the prosecution taken cumulatively fits in within the scope of the multiple parameters to determine if malice aforethought is proven in the seminal landmark case of Tubere S/O Ochen which clearly outlines the features of the weapon used, the nature and the location of injuries, the motive and the victim’s vulnerability. 38.For those reasons, this was unlawful killing of another human being by the name Tecla manifested with malice aforethought with no evidence of justification or extenuation to have the offence reduced to manslaughter contrary to Section 202 of the Penal Code. I therefore have no hesitation to find the accused guilty of the offence of murder contrary to Section 203 of the Penal Code and subsequently convict him of the offence which shall be followed with sentencing hearing under Section 204 of the Penal Code. Verdict And Sentence 39.Sentencing for murder contrary to Section 203 is governed by Localized Statutory Guidelines 2023 and Landmark’s Jurisprudence that dictates a Court’s reasoning, judicial discretion, weighing aggravating factors i.e. premeditation of the offence, vulnerability of the victim as against mitigating factors like provocation, age, mental capacity to achieve a proportional sentence. One such jurisprudential decision for sentencing murder offenders is the case of Francis Muruatetu & Another vs Republic & Others [2017] eKLR. In so far as the Supreme Court decision is concerned in the Muruatetu declaration a mandatory death sentence as earlier on described by Parliament under Section 204 was rendered unconstitutional for reasons that it disallowed mitigation and exercise of judicial discretion in sentencing of offenders who have been convicted under Section 203 of the Penal Code. The Court reiterated and emphasized that Section 204 of the Penal Code runs foul the provisions of Section 216 and 329 of the Criminal Procedure Code which provides as follows:The Court may, before passing sentence or making an order against an accused person under Section 215 receive such evidence as it thinks fit in order to inform itself as to the sentence or order to be passed or made.Section 329 of the Criminal Procedure Code provides:The court may, before passing sentence, receive such evidence as it thinks fit in order to inform itself as to the proper sentence to be passed. 40.In this same dicta the Apex Court laid down guidelines with regard to mitigating factors that shall be applicable among other factors for trial Courts to exercise judicial discretion and sentencing.a.Age of the offender;b.Being a first offender;c.Whether the offender pleaded guilty;d.Character and record of the offender;e.Commission of the offence in response to gender-based violence;f.Remorsefulness of the offender;g.The possibility of reform and social re-adaptation of the offender;h.Any other factor that the court considers relevant. 41.The Sentencing Policy Guidelines provide the principles underpinning the sentence process besides the objectives which briefly provide as follows: Proportionality: The sentence meted out must be proportionate to the offending behavior meaning it must not be more or less than is merited in view of the gravity of the offence. Proportionality of the sentence to the offending behavior is weighted in view of the actual, foreseeable, and intended impact of the offence as well as the responsibility of the offender. Equality/Uniformity/Parity/Consistency/Impartiality:The same sentences should be imposed for same offences committed by offenders in similar circumstances. Accountability and Transparency: The reasoning behind the determination of sentence should be clearly set out and in accordance with the law and the sentencing principles laid out in these guidelines. Inclusiveness: Both the offender and the victim should participate in and inform the sentencing process. Totality of the Sentence: The sentence passed for offenders convicted for multiple counts must be just and proportionate, taking into account the offending behavior as a whole. Retribution: To punish the offender for their criminal conduct in a just manner. Deterrence: To deter the offender from committing a similar or any other offence in future as well as to discourage the public from committing offences. Rehabilitation: To enable the offender to reform from his/her criminal disposition and become a law-abiding person. Restorative justice: To address the needs arising from the criminal conduct such as loss and damages sustained by the victim or the community and to promote a sense of responsibility through the offender’s contribution towards meeting those needs. Community protection: To protect the community by removing the offender from the community thus avoiding the further perpetuation of the offender’s criminal acts. Denunciation: To clearly communicate the community’s condemnation of the criminal conduct. Reconciliation: To mend the relationship between the offender, the victim and the community. Reintegration: To facilitate the re-entry of the offender into the society. 42.During the sentencing hearing learned Counsel for the accused filed mitigation for Court’s consideration which included that the accused is aged sixty-two (62) years and at the time he went to collect the money in issue to bury his wife and to pay school fees for his children. Learned Counsel further mitigated on behalf of the accused that he is the sole breadwinner for his children and in the event he is incarcerated, his children will remain orphaned. Learned Counsel further invited the Court to take notice that the accused suffers from cancer and therefore a non-custodial sentence would be appropriate. 43.In so far as the pre-sentence report is concerned, the Probation Officer shared with the Court a report dated 23rd of April 2026 in which he covered the following areas: impact of the crime on the victim, physical impact, psychological and emotional support, economic impact, social support, the needs and concerns of the victim. 44.In conclusion, the Probation Officer opined as follows: That the offence resulted in the injury of Tecla Jepkorir, who succumbed later after an assault involving her brother within the family homestead. While the primary victim is physical harm was ultimately fatal, the broader impact has been most significantly felt by secondary victims, particularly her children, mother, and extended family who experienced emotional distress and loss. The economic burden arising from medical treatment and funeral arrangements was collectively managed by the family and community, and has since been absorbed within the extended family support system. Socially, the incident initially strained family relations; however, reconciliation efforts have since restored relative harmony and cohesion within the family. The children of the deceased remain under the care and protection of the extended family, with their welfare fairly stable. Overall, while the offence had emotional consequences, particularly due to its intra-family nature, the impact has been mitigated by family support and ongoing care arrangements for the deceased children. 45.It is trite law that a Court will take cognizance of the dictum in the Muruatetu Case in which the Court emphasized what has to be considered is the triad consisting of the crime, the offender and the interest of the society. Therefore, a balance has to be struck between the interest of the accused and that of society. As stated by the Supreme Court, punishment should fit the criminal as well as the crime, be fair to he society and be blended to the measure of mercy according to the circumstances of the case. 46.In my considered view Courts are required to approach the imposition of sentence conscious that the Legislature has ordained the death penalty for the offence of murder and what was outlawed is the mandatory nature of the sentence. I also take the view that unless there are compelling all exceptional circumstances which can be seen to be truly convincing reasons for a difference response to sentence the crime of murder in question therefore requires to elicit a severe standardized and consistent response from the Courts on sentence. The specified sentence of death is not to be departed from lightly and for flimsy grounds or reasons like lip service mitigation that one is remorseful and regrets the offence which has no evidential material to support such claims but just a normal routine kind of mitigation. 47.Indeed I have reviewed the entire case docket, the mitigation and a sense of aggravating factors. All contribute majorly to the exercise of discretion for a sentence I am about to pass against the accused. In my analysis and appreciation of the entire evidential matrix I find the accused’s behavior to be appalling with total disregard for the law on the right to life. The Court has been told many things in mitigation by the Learned Counsel and the Probation Officer but there are no substantial and compelling circumstances in which to temper mercy with justice. The accused killed his own sister who had nothing to do with the issues of money, sale o land, burying of her sister in law which eventually cost her life from the person she looked up to for protection and security as a member of the family. Murder is defined as causing the death of another human being with malice aforethought. In essence, malice aforethought means the same as intent which was established against the accused beyond reasonable doubt. 48.It is the supreme law of the land that every human being has inherent right to life under Article 26 of the Constitution. These rights shall be protected by law and every citizen must defend it with all his or her means at his or her disposal including even the State itself. Therefore no one will be arbitrarily deprived of his or her life as the instant case demonstrates on the unlawful acts executed by the accused person against his own sister by the name Tecla. Accordingly, I would therefore having reflected on the mitigation, aggravating factors and the gravity of the ruthless murder of the deceased in this case and the fact it was motivated by exterior motives which the deceased had no contribution to initiate or be part of in the psychological and emotional drain on the part of the accused. 49.I am also reminded that our responsibility as Courts for the sacred duty bestowed upon us by the Kenyan people always to remember that we must be timorous about performing that duty. It also behoves this Court not to recoil from audacity in the protection of human rights particularly the right to life under Article 26 and in keeping alive the hope of those who seek these courts’ enforcement of their constitutional right to life through the adjudicatory process in the criminal arena in which their rights have been threatened or violated within the spectrum of penal law. In spite of the mitigation I proceed to impose a sentence of twenty-five (25) years imprisonment. 14 days right of appeal explained to the accused person. DATED & DELIVERED AT ELDORET ON 29TH DAY OF MAY 2026.…………..……………………R. NYAKUNDIJUDGEIn the presence of:Ms Kirenge for ODPPDr. Chebii for the AccusedThe Accused in person