Republic v Gituma & 2 others; PM (A Minor) (Subject) (Criminal Case E115 of 2020) [2024] KEMC 124 (KLR)
The bottom line
#A Kenyan magistrate convicted three family members of grievous harm after a panga attack, but acquitted all four of attempted murder because no intention to kill was proved.
What this practically means
#Executive summary
#Key legal issues
#Ingredients of attempted murder
Attempted murder was not proved against any accused because there was no positive intention to kill and no sufficiently proximate act
Relying on Abdi Ali Barre v Republic, the court held that attempted murder requires proof of both mens rea and actus reus, the intent being the principal ingredient. Nothing less than an intention to kill will do. The act must also be immediately and not remotely connected with the commission of the murder. On the evidence, the attacker never expressed a positive intention to kill nor took the last act necessary to effect death, so Count I failed.
Grievous harm - 1st accused Moses Gituma
Convicted on Counts 2 and 3; the prosecution overwhelmingly proved grievous harm
The attack occurred in broad daylight at 2pm with unhindered recognition; the complainants positively identified their brother as the lead attacker who inflicted repeated deep panga cuts, amputating Grace's arm and dismembering Lucy's ear. Medical evidence established grievous harm. His claim of self-defence was rejected as fabricated because he had no injuries and no medical evidence, and he acted to prevent his sisters from benefiting from land decreed to them in the succession cause.
Aiding and abetting - 3rd accused Joyce Igoki
Convicted on Count 3 only as a principal offender under sections 20 and 21 of the Penal Code
The evidence showed she immobilized Lucy Kiende, assisted by Munyi and Dinah, so her husband had unlimited space to attack and injure her; Lucy's ear was cut off completely while the 3rd accused sat on her. Her facilitation made her an aider, deemed a principal offender. She did not harm Grace Mwari and was acquitted of attempted murder and Count 2.
Alibi defences of 2nd and 3rd accused and the 4th Subject
2nd and 3rd accused acquitted despite late-raised alibis because no evidence linked them; 4th Subject's alibi rejected as an afterthought and he was convicted on Count 2
Njeru's alibi was raised late, but since no witness linked him to the crimes he was acquitted. Joyce Igoki likewise admitted raising her alibi at the defence stage, yet the court found on the evidence that she participated by immobilizing the victim. The minor's alibi was rejected as an afterthought following Victor Mwendwa Mulinge v Republic, as he was positively recognized by the complainants and PW3 in a daytime attack.
Legal principles established
#- In a charge of attempted murder the prosecution must prove both mens rea and actus reus, and nothing less than an intention to kill will suffice
- A distinction must be drawn between mere preparation and an attempt; the act must be sufficiently proximate to the offence, i.e. the last act necessary to commit it
- A person who aids or facilitates the commission of an offence is a principal offender under sections 20 and 21 of the Penal Code
- An alibi raised for the first time at the defence stage may be rejected as an afterthought
Court orders
#- 1.1st accused Moses Gituma convicted on Counts 2 and 3 (doing grievous harm) under section 215 of the Criminal Procedure Code
- 2.2nd accused Jephthah Njeru acquitted of all charges and set at liberty unless otherwise lawfully held
- 3.3rd accused Joyce Igoki convicted on Count 3 only (doing grievous harm to Lucy Kiende) as a principal offender under sections 20 and 21 of the Penal Code; acquitted of attempted murder and of grievous harm to Grace Mwari
- 4.4th Subject P.M. found liable as joint principal offender on Count 2 (grievous harm to Grace Mwari) under section 215 of the Criminal Procedure Code; acquitted of Counts 1 and 3
- 5.Right of appeal of 14 days advised to the convicted accused persons
- Jurisdiction invoked
- First-instance criminal trial under the Penal Code (ss. 220(a), 234) and the Criminal Procedure Code (s. 215)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Republic v Gituma & 2 others; PM (A Minor) (Subject) (Criminal Case E115 of 2020) [2024] KEMC 124 (KLR)", Case Analysis (2024). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2024/124/eng@2024-01-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.