https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9703

**** **REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT MACHAKOS** **CRIMINAL CASE NO. 24 OF 2018** **REPUBLIC ……………………………………………PROSECUTION** **VERSUS** **ANCETUS MUSYOKI WAKI** *alias* **RAILA ……………….ACCUSED** **JUDGMENT** 1. The accused person is charged with the offence of murder contrary to **Section 203 as read with Section 204 of the Penal Code.** 2. The particulars of the offence are that on 22nd August 2018 at Yathui Village, Kyangulumi Sub-location, Yathui Location, Mwala Sub-County within Machakos County the accused person murdered GEDION KATUMO MUSILI. 3. The accused person pleaded not guilty to the charge whereupon the prosecution called eight (8) witnesses. 4. The court heard that on the material day the deceased was in a club drinking with his friends when a fight ensued between therein. The deceased did not take part in the fight in the bar. However, the accused attacked him and as a result he suffered injuries after he was hit in the back by the accused. The blow felled him to the floor. The deceased was then taken to his home by a motor cycle rider but his condition deteriorated and he was taken to Wamunyu Dispensary and later to Machakos Level Five hospital where he succumbed to the injuries. 5. According to PW2 when he went to the scene upon hearing noise, he found three people fighting; the deceased was lying on the ground while one Nguli was fighting with the accused. He escorted the deceased up to his shop and paid a motor cycle rider Kshs. 50 to take him home. 6. PW3 confirmed that he was paid Kshs. 50 to take the deceased home. He stated that the deceased was drunk and incoherent and after dropping him off at his home he went away. 7. The only witness who claims to have witnessed the occurrence first hand was PW6. According to him, on that fateful day, at about 5pm, he was drinking with the deceased in a bar when the deceased stepped out to answer a telephone call. The deceased did not go back so he (PW6) decided to go look for him. He stated that he traced the deceased to another bar where he was quarrelling and trading insults with the accused person. PW6 stated that they left to go back to the other bar and as they were on their way out the deceased was suddenly hit on the back by accused. He fell to the ground. He left to report the matter to a nearby police post but on going back to the scene, he did not find the deceased as he had been taken home. It was PW6’s testimony that he went to the deceased’s home and found him lying on the floor of his sitting room unresponsive. He called his nephew and told him the deceased had been hit by accused. The next day he received news that the deceased had died. 8. PW7 testified that on the fateful day he encountered the deceased near Miu Bar. They entered together and found the accused together with other people who were known to them. He stated that the two traded insults after which the accused left momentarily then came back. He stated that he later heard that the accused beat the deceased but he himself did not witness it. He stated that he saw the deceased being put on a motor cycle to be taken home. 9. PW5 testified that they performed a post mortem on the deceased. He had multiple superficial skin injuries on the abdomen and chest. On the head there was a fracture on the scalp and inside the skull there was a clot on the right side. Additionally, there was internal bleeding of the brain on the right side. The cause of death was due to bleeding to the head secondary to blunt force trauma. 10. As part of its evidence the prosecution produced a post mortem report to ascertain that the death of deceased and the cause of the death. 11. PW8 testified that they went to the scene of the crime which was Muuo Bar and interrogated the waiter who served the deceased and the accused. The waiter told them that there was a heated exchange between the accused and the deceased. After the exchange they left the bar and started walking towards their home. The accused then hit the deceased with his right hand and the deceased fell and landed on the back of his head. The accused was subsequently charged with this offence. 12. When this court put the accused on his defence, he elected to testify on oath and not to call any other witness. In his testimony, he admitted having hit the deceased. He however, stated that he only slapped the deceased before people separated them. He disputed that the deceased fell and explained that he hit the deceased for insulting his (accused’s) family by stating that his wife and children were mad. He contended that the insult annoyed him prompting him to do what he did. The accused testified that after the incident, the deceased boarded a motor cycle and went home and he only learnt of his death in September although he had not left the village. 13. Learned Counsel for the prosecution and the defence elected to make their closing arguments through written submissions but in the end only those of prosecution counsel were received. 14. In his submissions, learned Prosecution Counsel, Mr. Masila, has urged this court to find that the charge against the accused has been proved beyond reasonable doubt; that the defence of provocation raised by the accused person does not avail in the circumstances of this case, as the insults complained of would not have provoked anyone to lead them to use as much force as the accused used upon the deceased; and that in any event provocation is not a complete defence as would warrant an acquittal much as it would lead the court to reduce the offence to manslaughter. Counsel urged this court to find the accused guilty of the offence of murder as charged. 15. There are four elements of the offence of murder that the prosecution must prove against the accused beyond reasonable doubt. They are; 16. **The fact of death of the deceased;** 17. **The cause of death and that it was by an unlawful act;** 18. **That the unlawful act was committed by the accused person;** 19. **That the accused acted of malice aforethought.** 20. In this case the fact of death of the deceased is not in dispute: it has been conceded even by the accused person. That the death was by an unlawful act is also not in doubt given that it arose from the injuries inflicted through an assault. Although the accused denied it, there was an eye witness account that the blow the accused gave to the deceased, felled him to the ground as a consequence of which he suffered injury to the back of the head. This eye witness account is more consistent with the cause of death as given by the pathologist than the mere slap which the accused alleged to have inflicted on the deceased. It is also instructive that the death of the deceased occurred only a few hours after the deceased inflicted the blow to the back of his head. 21. The accused raised the defence of provocation which the prosecution considers not available to him. The defence of provocation is provided for in **Section 207 of the Penal Code** which states: “***207. Killing on provocation*** ***“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, is guilty of manslaughter only.”*** 1. The instances under which the defence is available to an accused person are set out in **Section 208** **of the Act** as follows:- “**208. *Provocation defined*** ***“(1)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 a conjugal, parental, filial or fraternal relation, or in the 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.*** ***(2)When such an act or insult is done or offered by one person to another, or in the presence of another to a person who is under the immediate care of that other, or to whom the latter stands in any such relation as aforesaid, the former is said to give to the latter provocation for an assault.*** ***……………….”*** 1. Having considered and evaluated the evidence by both sides carefully, I am in agreement with learned prosecution Counsel that the defence of provocation does not avail to the accused. This is because the offence was not committed in the heat of the moment. There was evidence that as a matter of fact the accused also insulted the deceased by saying his children were thieves. PW6 gave evidence that the two of them hurled insults at each other inside the bar but the accused assaulted the deceased after he (PW3) had persuaded the deceased to leave with him. The accused therefore had time to cool off but instead he followed the deceased outside and attacked him. The defence does not therefore avail. 2. Be that as it may, the prosecution must also prove the element of malice aforethought beyond reasonable doubt, in order to succeed on the charge of murder. **Section 206 of the Penal Code** provides that malice aforethought can be implied from any of the following circumstances; “***206. Malice aforethought*** ***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.”*** 1. From the evidence, it is clear that the accused person only inflicted one blow to the back of the deceased’s head. According to the Pathologist (PW5) who conducted a post mortem on the body, the deceased had other injuries which probably had been sustained previously. It was her evidence that the cause of death was an epidural haematoma secondary to head injury secondary to blunt trauma. When asked if the injury could have been caused by a fall the Pathologist’s words were “**yes, even a sudden fall can lead to head fracture**”. It is therefore probable that the blow by the accused was not the direct cause of death but rather the contact which the deceased had with the ground when he fell as a result of the blow. **Section 213 (e) of the Penal Code** states that: “[213] ***Causing death defined*** ***“A person is deemed to have caused the death of another person although his act is not the immediate or the sole cause of death in any of the following cases—*** ***……………………*** ***(e) if 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.”*** It is my finding that therefore that it is the act of the accused which caused the fall which then caused the death and hence it can be concluded that he killed the deceased. 1. What was not proved however, is that the accused acted of malice aforethought. In the case of **Nyakundi v Republic (Criminal Appeal No.144 of 2020 [2026] KECA 187 KLR.** The Court of Appeal stated in regard to malice aforethought: ***“[33] As decided cases suggest, there has to be intent to cause harm or death or knowledge that an act can cause death or injury on the part of the accused person. Did the evidence establish the requisite mens rea on the part of the appellant? We have perused the evidence tendered before the trial court and the impugned judgment. We note that by attacking the deceased with a panga and a stick, the appellant ought to have known that he would cause grievous bodily harm or death. Further, the postmortem report shows that the deceased died of asphyxia, secondary to manual strangling. Strangulation, even by itself without any other injuries, is potentially fatal and the fact that she was strangled until she died manifests a motive to kill, that is, the presence of mens rea. In Rex vs. Tubere s/o Ochen (Supra), it was stated that if repeated blows to the vulnerable parts of the body are inflicted, then malice aforethought can be inferred. In the same vein, strangulation till death occurs is clear evidence of premeditated murder. Accordingly, it is our finding that malice aforethought was sufficiently proved to the required standard.”*** 1. The circumstances of this case rule out that the killing was premeditated and accordingly, I find that as the killing was uncalled for and was unlawful the accused committed the offence of manslaughter contrary to **Section 202 as read with Section 205 of the Penal** **Code** and convict him accordingly. It is so ordered. **Judgment signed, dated and delivered virtually through Microsoft teams on this 25th day of June, 2026.** **E. N. MAINA** **JUDGE** **In the presence of:** Mr. Mbindyo Advocate for accused Mr. Masila for the State The accused person Catherine - Court Assistant/Interpreter