https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7792

Republic v Waithera & 2 others (Criminal Case E006 of 2023) [2026] KEHC 7792 (KLR) (28 May 2026) (Judgment) Neutral citation: [2026] KEHC 7792 (KLR) Republic of Kenya In the High Court at Thika Criminal Case E006 of 2023 FN Muchemi, J May 28, 2026 Between Republic Prosecution and Victor Muya Waithera 1st Accused Gerald Kihara Waithera 2nd Accused Elias Kagai Njuguna 3rd Accused Judgment 1.The accused persons face a charge of murder contrary to Section 203 as read with Section 204 of the Penal Code. The particulars of the charge are that on 11th November 2023 at Kenyatta road Kwa Maua Area in Juja Sub County within Kiambu County, jointly with others not before the court murdered Francis Mbae Githigia. 2.The prosecution called eight (8) witnesses in support of its case. Upon close of the case, the court found that the accused persons had a case to answer and they were placed on their defence with their rights under Section 211 of the Criminal Procedure Code having been explained to them. 3.The evidence of the prosecution was that on the 14th day of October 2023 PW1 was cleaning her house when the 1st accused person went there looking for the deceased, who was PW1’s younger brother. The witness PW1 said that she did not know where her brother was. The 1st accused person then left. After sometime, PW1 was called by two children of her neighbours and informed that some young men were beating the deceased and they were saying that they could kill him. PW1 went outside the gate and found the three accused persons beating the deceased in their compound. The 1st and 2nd accused persons are brothers and neighbours of PW1. The 3rd accused person pushed the deceased outside their gate while the 1st accused person pushed PW1’s brother and hit him against the wall. PW1 further testified that the accused persons were hitting the deceased using blows and kicks. Present at the scene was the mother of the 1st accused person who did nothing to stop the fight and told PW1 that they should let the deceased be beaten. Further, the 1st accused person stated “Nipatie huyo Mbae nimuue” meaning “give me that Mbae, I kill him.” 4.PW1 left the compound with the deceased who was bleeding in the face, mouth and arm. PW1 and two other women, PW4 and one Mama Nyambura took the deceased to a nearby clinic and the accused persons followed them. The 1st accused person entered the doctor’s room and vowed to kill the deceased inside there. PW1 advised the 1st accused person to report the matter to the police. PW1 instructed her two daughters to accompany the 1st accused to the police station to report the matter. After about two weeks PW1 went to the market and one of her daughters called her and informed her that the deceased had collapsed. PW1 called the neighbours on phone to assist take the deceased to hospital. The deceased was referred for treatment to Thika Level 5 Hospital where he was admitted in the Intensive Care Unit due to injuries to his head. The deceased later passed away on 11th November 2023. The accused persons were thereafter arrested and taken for mental assessment where Dr. Amos Kariuki Gachuki declared them fit to plead. 5.Post mortem of the deceased’s body was conducted by Dr. John Mathaiya and he formed the opinion that the deceased died as a result of complications of head injury (subacute subdural haemorrhage) due to blunt force trauma to the head. 6.Upon being put on their defence, the accused persons elected to give sworn testimony and called one witness. The 1st accused stated that on 14/10/2023 he was at home with his friend, the 3rd accused person, 2nd accused his brother and their mother were present. At around 5.00 p.m., the deceased went to their house in a drunken state. The 1st accused testified that he and the 3rd accused were also drunk. The deceased was infuriated with the accused. He asked him what had transpired in a local club on 13/10/2023 where he had been with his mother. The 1st accused’s mother had told the 1st accused that on the said night she was drinking with the deceased in a bar and when she left briefly to go to the toilet, the deceased had put something in her drink. His mother told him that she poured out the drink and ordered another one. On hearing that, the 1st accused said that the deceased got annoyed, got up and held him by the neck. At the time the 2nd and 3rd accused persons had walked away but they were within the plot in the room of the 2nd accused. The 1st accused screamed and the two accused persons went to where he was while his mother walked away. 7.The 1st accused said that the 3rd accused person joined in the confrontation and he hit the deceased using his head on the deceased’s chest but the 3rd accused told him to stop hitting the deceased whereas the 2nd accused pulled the deceased away and told him to go back home. He then hit their gate calling PW1 to go over. The witness stated that the 2nd and 3rd accused persons did not hit the deceased but separated them. PW1 went to their house the following day and informed 1st accused that they had taken the deceased to the clinic for treatment and spent Kshs. 1,000/- which she demanded he refund her. She left and went to report the case. The witness stated that the deceased is the one who provoked him to fight. 8.The 2nd accused testified that he went to the house he shared with DW1 at 5 pm on the fateful day and when he heard noise from outside, he went outside and saw a confrontation between the 1st accused and the deceased. He said that his mother was in her room. The 2nd accused further stated that the deceased, 1st accused and 3rd accused were drunk at the time. He said that the 1st accused and the deceased were pulling each other whereas the 3rd accused had fallen down. He further pulled away the deceased as the 3rd accused pulled the 1st accused away in a bid to separate them. At the time, the 2nd accused said his mother was watching the confrontation. PW1 went to the scene and led the deceased to their house. The 2nd accused further said that outside their house, there are steps and the deceased fell down there. The 2nd accused stated that they were children playing outside the plot near the scene at the material time. 9.The 3rd accused stated that he was at the 1st and 2nd accused’s house on the material day at around 5pm when the deceased and the 1st accused person were in a confrontation. The deceased held the 1st accused person by the neck and the mother of the 1st accused person was present. The 3rd accused said that the 2nd accused and himself tried to separate the deceased and the 1st accused by pulling them away. He further said that the mother of 1st accused was calling the 1st accused and the deceased to stop the confrontation but they could not listen. He added that the deceased left with his sister to their house in the next plot. DW3 said that the deceased and the 1st accused were both very drunk and he was drunk too but he was in control of himself. 10.DW4, Mary Waithera Mwangi the mother of 1st and 2nd accused testified that on 13/10/2023 around 9.00 p.m. she was at Singapore Bar drinking alone and the deceased went later and sat on a nearby table. She went to the bar to collect her change leaving her beer unattended and as she waited at the counter she saw a young man at her table bending towards her glass and putting his hand in her glass. She said that she suspected that the man was drugging her drink and then she poured it out. DW4 then noticed that the young man was seated at the deceased’s table and she then walked to the said table and confronted the deceased on whether he knew the young man. The deceased turned towards her and accused her of killing his children. DW4 said that she took her change and left the bar at around 10 pm and went home. Later, she went to another bar to drink until 4.00 a.m. when she went home. At around 11am the following day, the 1st accused confronted her and asked her where she had gone the previous night. The 1st accused then told her that he knew where she had been and that the deceased had told him everything. The 1st accused informed her that he would get the deceased and bring him to their home so that he could tell his side of the story for 1st accused to know who was telling the truth. The deceased later went to their home in the neighbourhood. The witness said that the 2nd and 3rd accused persons were present during the fracas. The 1st accused person confronted the deceased who got up and held the 1st accused by the neck. The two men started fighting. DW4 said that the two fought in her presence using fists and kicks. According to DW4, the 2nd and 3rd accused persons did not beat the deceased but they tried to separate them. The witness further stated that the 2nd accused went and called PW1 the sister to deceased and the two escorted the deceased to their house. 11.DW4 stated that at around 7pm she decided to go to PW1’s house to tell her how the fight started and PW1 told her that the deceased had suffered an injury on his lip, PW1 requested to be given money for treatment by DW4. On 15/10/2023, PW1 went to DW4’s house and told her that they proceed to report the incident to the village elder but instead PW1 took her to their neighbour’s house, Mama Nyambura for her to explain what led to the fight. PW1 then stated that she wanted DW4 to pay half of the costs of treatment of the deceased and she refused to give her any money. 12.Both parties elected not to file written submissions. The Law and Analysis 13.The burden of proof in criminal cases lies on the prosecution to establish that the deceased’s death was a result of the unlawful act of the accused person. The prosecution must prove the primary ingredients of the offence of murder namely:-a.That the deceased died as a result of the unlawful act of the accused;b.That the accused person has been positively identified and placed at the scene of the crime;c.That the unlawful act was actuated by malice, rather that malice aforethought existed on part of the accused person. 14.Upon the death of the deceased, PW8 Dr. John Mathaiya conducted an autopsy on the deceased. The post mortem report shows that the cause of death was complications of head injury (subacute subdural haemorrhage) due to blunt force trauma to the head. The death and cause of death have been established by the prosecution herein. Whether the accused persons caused the death of the deceased by either an unlawful act or omission. 15.The prosecution case consisted of both direct and circumstantial evidence. PW1 saw the accused persons fighting with the deceased, beating him with blows and kicks. After two weeks, the deceased died of the injuries inflicted. The defence witnesses all testified that PW1 was present at the scene and that they were children playing outside the plot on the road at the material time. This evidence corroborates the testimony of PW1 who stated that she was called by two children and they informed her that the accused persons were beating up the deceased. PW1’s testimony is further consistent with the post mortem evidence which indicated that the cause of death was due to the head injuries. 16.The defence witnesses placed themselves at the scene of the crime and they testified that a fight broke up between DW1 and the deceased. The accused persons were identified as persons known to PW1 as they were neighbours. The identification was therefore by recognition as the incident occurred during the evening hours in broad daylight. 17.The family of the 1st and 2nd accused persons and that of the deceased lived on adjacent plots. The deceased and his sister PW1 as well as other neighbours including PW 4 identified the accused persons as the trio who beat up the deceased on the material evening. The defence of the accused person to exonerate the 2nd and 3rd accused was not credible. Their own mother DW4 said all the three accused persons were at the scene. PW1 saw the three young men whom she knew very well with her neighbours assault her brother consistently with fists and kicks. The story of the accused persons and their mother that the deceased fell at the door of their house and injured himself on the head and face was proved untrue by the evidence of the eye witnesses. 18.It is, therefore my considered view that the prosecution proved that the three (3) accused persons were the ones who unlawfully inflicted the fatal injuries on the deceased. Whether the accused persons had malice aforethought 19.Section 206 of the Penal Code stipulates that malice aforethought is deemed to be established by evidence when any of the following circumstances are proved:-a.An intention to cause the death of another.b.An intention to cause grievous harm to another.c.Knowledge that the act or omission causing death will probably cause death or grievous harm to someone, whether that is the person killed or not, accompanied by indifference whether death or grievous injury occurs or not or by a wish that it may not be caused.d.An intent to commit a felony.e.An intention to facilitate the escape from custody of or the flight of any person who has committed a felony or attempted it. 20.It is trite that for a charge of murder to hold against the accused persons, the prosecution must prove that at the time they inflicted the injuries on the deceased, they had formed the necessary intention to either cause death or grievous harm on the deceased. The prosecution submitted that the accused persons demonstrated malice aforethought by inflicting fatal injuries on the deceased’s head. It was further submitted that the magnitude of the injuries inflicted on the deceased as indicated in the post mortem report show that the accused persons had the intention of killing the deceased. 21.The defence challenged the evidence of the prosecution and DW1 stated that the deceased is the one who provoked him to fight. The law relating to provocation has been provided in Section 207 and 208 of the Penal Code. Section 207 provides:-"When a person who unlawfully kills another under circumstances which but for the provisions of this section would constitute murder, does the act which causes death in the heat of passion caused by sudden provocation as hereinafter defined, and before there is time for his passion to cool he is guilty of manslaughter." 22.Section 208 of the Penal Code defines the term provocation as follows:-"The term provocation means and includes, except as hereinafter stated any wrongful act or insult of such a nature as to be likely when done to an ordinary person or in the presence of an ordinary person to another person who is under his immediate care, or to whom he stands in conjugal parental filial or fraternal relation or in relation of master or servant, to deprive him of the power of self-control and to induce him to commit an assault of the kind which the person charged committed upon the person by whom the act or insult is done or offered." 23.The question on provocation has been subject to interpretation in superior courts in several cases particularly in an earlier case of Republic vs Hussein s/o Mohammed [1942] EACA at pg 66, the Eastern Court of Appeal held:-“When once legal provocation as defined in our court has been established and death is caused in the heat of passion whilst the accused is deprived of self-control by that provocation the offence is manslaughter and not murder, and that irrespective of whether a lethal weapon is used or whether it is used several times or whether retaliation is disproportionate to the provocation. The presence of one or more of these factors is of course a matter to be taken most carefully into account when considering the question of sentence but will not of itself necessarily rule out the defence of provocation." 24.In the case of Peter Kingori Mwangi & 2 Others vs Republic [2014] eKLR the court stated that for provocation to exist the following two conditions must be established:-a.The subjective condition that the accused was actually provoked so as to lose his self-control ; andb.The objective condition that a reasonable man would have been so provoked. 25.From the evidence adduced, there is no evidence that the 1st accused acted in the heat of passion or was suddenly provoked as to lead him to act in the manner that he did. The 2nd and 3rd accused both testified that they were drunk at the time of the incident. Although DW2 testified that he was not drunk, DW4 testified on re-examination that the three accused persons went home drunk on the material day. From the record, both PW1 and DW1 testified that that it was the 1st accused who went looking for the deceased and took him to his mother’s house. He demanded to know what had transpired the night before between him and his mother. PW1 testified that when they took the deceased to the clinic, the 1st accused insisted that he would enter the doctor’s room and kill the deceased she advised him to go report the matter to the police station. DW1 in the company of PW1’s daughters went to report the matter at Muigai Inn Police Post in regard to the offence of assault.The evidence on record was to the effect that PW1 and 1st accused testified that DW4, the mother of 1st accused did not stop the confrontation between DW1 and the deceased. The evidence supports the fact that the accused persons found out what had transpired the previous night and were acting on that information. It is evident that DW1 was the aggressor in the instant case and the two other accused persons were assisting him in beating up the deceased. 26.It is noted that the injuries sustained by the deceased do not support the defence of provocation. DW2, DW3 and DW4 stated that the deceased fell and that is what caused his head injuries. PW8, Dr. Mathaiya testified that the deceased had multiple marks on both arms mainly on the posterial side of the hands and upper arm which depict self defence. On further cross examination, the witness testified that the deceased’s head had several injuries on several spots and such injuries could not have been caused by a fall. Additionally, defence injuries were visible on the deceased’s arms and hands and therefore if it had been a fall, there would not have been defence injuries on the hands and arms. The injuries sustained support the evidence of PW1 to the effect that the three accused persons beat up the deceased and not even their mother who was present during the assault tried to intervene to stop the said beatings. The accused persons were intent on beating up the deceased due to the incident that had occurred the previous night in the bar involving DW4. 27.It is my considered view that the prosecution has proved beyond reasonable doubt the ingredients of the charge of murder contrary to Section 203 as read with Section 204 of the Penal Code. I find the three (3) accused persons guilty of the offence and convict them accordingly. 28.It is hereby so ordered. JUDGMENT DELIVERED VIRTUALLY, DATED AND SIGNED AT THIKA THIS 28TH DAY OF MAY 2026.F. MUCHEMIJUDGE