Director of Public Prosecutions v Mogaka Lawi

5. Evana’s daughter Tyra Leyara recalled that on 30th December, 2022, Accused arrived home at around 10.00 pm and found her with her sister aged 3-year-old sister and Bokacha. That her mother Evana arrived immediately thereafter and Accused who was peeling potatoes quarreled Evana since there was no food for dinner. That the witness went to sleep and later in the night when she returned to her mother’s house to collect a torch, she found her mother’s lifeless body with the neck almost severed lying on the bed and next to it was a kitchen knife. 6. Gregory Lianka, Evana’s brother on the night of 30th and 31st December, 2022 went to collect his torch from Evana’s house and on getting no response from there called Evana’s daughter to pick it for him. That upon entering the house, Evana’s daughter rushed out screaming that her mother had been killed. The witness entered the house and saw his sister’s body with the neck almost cut of lying on the bed with a kitchen knife next to it. Matter was reported to the police who visited the scene and removed the body to the mortuary. 7. C.I Macmillan Chimbero, the investigating officer visited the murder scene on the material night and removed Evana’s body to Isiolo Hospital Mortuary. Accused was subsequently arrested on 05th October,2023 and was charged. 8. A post mortem conducted by Dr. Mohammed on Evana’s body on 06th January, 2023 revealed that she suffered clear cut wound on the throat/anterior neck which exposed major blood vessels, trachea and esophagus from which the pathologist concluded that the deceased death was due to excessive loss of blood due to the cut on her throat severing major blood vessels. Defence case 9. In his sworn defence, Accused stated that he quarreled with his wife Evana concerning his money that she had spent and, in the process, fatally injured her with a knife. Analysis and determination 10. Section 203 and 204 of the Penal Code under which the accused is charged provide for the offence of murder and the punishment for it. They require that the prosecution prove beyond reasonable doubt that the accused by an unlawful act or omission caused the death of the deceased through malice aforethought. 11. I have considered all the evidence availed in this case as set out above and the issue in question is whether the prosecution has proved the death of the deceased; that Accused persons caused the death and that they were actuated by malice. (See Roba Galma Wario v Republic [2015] eKLR and Republic v Mohammed Dadi Kokane & & 7 others [2014] eKLR). a. The death of the deceased 12. The postmortem form tendered in evidence Pexh. 1 reveals that that Evana suffered a clear-cut wound on the throat/anterior neck which exposed major blood vessels, trachea and esophagus from which the pathologist concluded that the deceased death was due to excessive loss of blood due to the cut on her throat severing major blood vessels. b. Proof that accused person committed the unlawful act which caused the death of the deceased 13. Accused admitted that he committed committed the unlawful act which caused the death of Evana. https://new.kenyalaw.org/akn/ke/judgment/kehc/2024/5600/eng@2024-05-09 2

page 2 of 3

Malice aforethought 14. Concerning malice aforethought, the Court of Appeal in John Mutuma Gatobu v Republic [2015] eKLR stated as follows: “ That leaves the question of malice aforethought. With respect to the appellant’s learned counsel, malice aforethought in our law is used in a technical sense properly defined under Section 206 of the Penal Code thus; “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 cause 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.” The court further stated that: There is nothing in that definition that denotes the popular meaning of malice as ill will or wishing another harm and all the related negative feelings. Nor, for that matter, is it to be confused with motive as such. Our law does not require proof of motive, plan or desire to kill in order for the offence of murder to stand proved, though the existence of these may go to the proof of malice aforethought. 15. I am satisfied from the nature of the injuries occasioned to Evana that the Accused did inflict them with no other intention other than to cause her death and that demonstrates malice aforethought on his part. 16. In the end, I find that the prosecution case proved and Accused is found is Guilty of the offence of murder Contrary to Section 203 as read with Section 204 of the Penal Code and he is convicted under Section 322 (2) of the Criminal Procedure Code. DATED THIS 09TH DAY OF MAY 2024 WAMAE. T. W. CHERERE JUDGE Appearances Court Assistants - Kinoti/Munene Accused - Present For Accused - Mr. Thuo Advocate For DPP - Ms. Rita (PC 1) https://new.kenyalaw.org/akn/ke/judgment/kehc/2024/5600/eng@2024-05-09 3

page 3 of 3