Republic v Peter Mwangi Muraimu

5. He testified that he saw the accused stabbing the deceased twice with a chisel. He called the employer Paul Maina and was advised to go to the police station to report. The deceased was bleeding and unconscious. Accused was still at the scene. Upon return he found the deceased breathing and alive. They went looking for accused and found him sleeping at the workshop along the fence, he was arrested and taken to the station. The deceased was taken to Bahati Sub-County Hospital and first aid was administered and referred to Nakuru Level 5 hospital where he was admitted. 6. He left hospital at 9.00 a.m. and went back to the workshop. His employer called him at midday that deceased’s condition had worsened and that he had been transferred to the ICU. He was later informed the deceased had succumbed. 7. In cross-examination, he confirmed knowing both the accused and the deceased and that, both would take alcohol, but denied that, he takes alcohol. That the accused was still at the scene when the police arrived. 8. PW2 Paul Maina, recalled being called by PW1 at 1.00 am. telling him that that the accused and the deceased were fighting and that the accused had stabbed the deceased on the head. He asked to go to a hospital but he urged Jack to report at the police station. The deceased was taken to the hospital at Bahati, where he found him unconscious on the bed. Deceased had been referred to PGH and at level 5 the deceased was strange as he spoke to him asking if he was injured. deceased was admitted and at 7 a.m. that he left to notify the deceased family on 24th he went to see deceased; he was already transferred to the He later I received call on 26th May, 2022 from the deceased father indicating he had succumbed. 9. In cross-examination he confirmed both were partaking alcohol but had never fought before, that the deceased spoke to him at PGH. 10. PW3 Patrick Marira Karuru, father of the deceased testified that Paul Maina (PW2) went to his home and informed him that, the deceased was seriously injured in a fight and was taken to hospital. He set out to visit the deceased and found him unconscious. The mother visited him the following day at 1pm and was told the deceased had be transferred to the Intensive Care Unit (ICU). The following day he went to the ICU and found the deceased still unconscious. On 26th of May 2022 they were informed that the deceased had succumbed and passed on and his body had been moved to the mortuary, after which he went and confirmed. Went home and reported to rest of family and started burial arrangements. 11. A post-mortem was conducted in his presence on 30th of May 2022 and the doctor informed him that death was as the result of injuries sustained. 12. PW4 Consolata Gathoni, mother of the deceased testified that PW2 went to their home and told them that there had been a fight at his work place injuring her son who was taken to PGH. On the 24th May,2022 the deceased was referred to the ICU where she saw him with machines, he was in a comma not opening his eyes or talking. On the 26th May, 2022 she was told he had succumbed and died and was informed that postmortem will be conducted. 13. PW5 Daniel Mumba Gichini, witnessed the postmortem having identified the body. He saw injury on wrist, the ribs on left side of skull and rear skull and right side of skull. 14. PW6 Fredrick Karanja Chege, deceased’s neighbour who identified the body but never witnessed the postmortem. 15. PW7 No.111687 P.C. Victor Menza recalled receiving a call on 23rd May, 2022 at 0130 hours from Cpl. Richard Opando who informed her to accompany him to scene of assault at Kamkunji trading center. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19704/eng@2025-08-04 2

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Upon arrival at the scene the reportee led them into a carpentry workshop where they found victim lying on a pool of blood unconscious. They tried looking for the accused within the workshop. The reportee found accused asleep within the workshop at a corner and they arrested him. 16. They took victim and suspect and proceeded to the station and on arrival at the station and a search was conducted on the accused and a chisel recovered from back pockets the one on the right. (PMFI 1), the accused pair of shoes had blood stains (PMFI 2) The victim was taken to Bahati Sub-County Hospital where he was attended to before being transferred to Nakuru PGH. He succumbed after he was admitted in ICU. 17. In cross-examination, she confirmed that before the incident she used to visit the workshop as a customer and I knew accused. The deceased was not well known to her but had interacted with him at the workshop. That there were 4 persons when she visited the workshop and it was the reportee who showed them where the deceased was. He was lying on his back still alive. The reportee had informed them the deceased had been attacked by the accused. No search was conducted on the accused at the point of arrest. She never signed a chisel head inventory. 18. PW8 No.85411 Cpl. Richard Obano the investigating officer, testified that on 23rd May, 2022 at 0120 hours he was in his house when he received phone call from report office personnel P.C. Koech of a report of assault. He went to office found the reportee Jack, PW1 who told him that he left deceased lying down unconscious. He called P.C. Menza who accompanied him to the scene 100 meters from the police station. At the workshop they found the deceased unconscious. They searched and found the accused sleeping on a couch which was at the workshop. They arrested accused and escorted him to the station and as they were booking him they conducted a body search and recovered a chisel on the rear right hand side pocket. 19. He kept the chisel and proceeded to Bahati Sub-County Hospital with deceased before he was transferred to Nakuru where the deceased admitted until 24th May, 2022 when he was informed that the deceased had been transferred to ICU. On 26th May, 2025 in the afternoon, he received call from PW2 that the deceased had succumbed and died the previous night. 20. He was furnished with the post-mortem report which indicated deceased had succumbed to two physical injuries on head penetrating the skull to the brain. He also suffered injury on left side of chest affecting his ribs and inner part. 21. As he was recording statements, PW1 informed him that the deceased and accused had been partaking alcohol and later went back to the workshop. There was an argument after deceased called the accused “ngetai” meaning an, un-circumcised one. A fight ensued and was later separated by PW1. Later on, they left to unknown place, PW1 went on to sleep. After sometime they came back and PW1 was awoken by commotion. The deceased was calling for help and opened the door and went to the front of workshop found deceased holding wooden door using it as shield in defence. 22. The accused was standing two (2) meters from deceased. Deceased got tired of holding the door and put it on the floor. Accused pounced on him. PW1 told him that he saw accused assaulting deceased using chisel on head. He called his employer who advised him to report. He produced the Chisel as Exhibit 1 and the accused shoes PExhibit 2 recovered with blood stains at the scene next to where he was sleeping. As they were arresting him he attempted to put on the black shoes and since they were bloodied they stopped him. 23. In cross-examination, he clarified that, no inventory was made with regard to the recovered chisel and that the shoes were not subjected to forensic examination. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19704/eng@2025-08-04 3

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24. PW9 Dr. Ngulungu, pathologist working at the Nakuru PGH and Nakuru County produced post mortem report on examination conducted on 30th May, 2022 P Exhibit 3. The body had injuries as needle pricks on the left dorsum. That was medical intervention. There was laceration R.S. 45 cm provisionally stitched. Stab wound 15mm x 2 back of the head and left side of head were stitches. The other injuries were dorsum of right hand and stab wound on chest measuring 20 mm. Those were the external observation. 25. Internal examination; there was blood contusion. It was floriation in the chest cavity. The other was blood which was at the cardiac. Cardiac muscle had contusion and laceration. There was hematoma on head. There was depressed fracture on back. Two fractures. Even if it is the severest cause of death was cardiac muscle injury with the other injury was head injury brain laceration and scalp fracture. Cause of death was severe injuries involving chest and head. 26. DW1, Peter Mwangi Muraimu, stated that on 23rd May, 2022 he left with the deceased from their place of work/living area and went to club/bar known as check point within Kamkunji center. That they were taking alcohol and at 10.00 p.m. the deceased told said he was going home but he remained there till 1.00 am. When he went to the house he found deceased telling him that “hapa si kwako unakuja ile masaa unataka.’ He beat him that he fled to a club that was next door called Montalop bar. 27. In the bar he was told it was closing for the day and he went back to the plot and as he was going to open the door, he heard the deceased saying in Kalenjin “Ngetai hii lazima nikuue leo.” That he turned to rescue himself and met a metal that scratched his right side of face and it fell down. The deceased rushed for the metal object and he fell down. They struggled; they fought then the deceased fell down. He went and slept in the workshop he thought the deceased had blacked out and would wake up in the morning. 28. That he found himself at the police station the next morning and never knew how it happened. At the police station he inquired and was told he had a fight with the deceased who had been taken to PGH for treatment. After 5 days he received information that deceased had succumbed to his injuries and died. He never killed the deceased never had previous differences with deceased. 29. In cross-examination, he denied the police recovered anything from him. He reported to the police that the deceased had hit him with a metal and he was not taken to hospital. 30. The Court directed parties to file written submissions the prosecution chose not to file submissions. The Defence submissions are not on record despite counsel advising Court they were ready. Analysis and Determination 31. Taking into account the evidence and testimonies before Court, the single the issue in question is whether the Prosecution proved beyond a reasonable doubt all the elements of murder against the Accused person herein. 32. The Sections 203 and 204 of the Penal Code under which the Accused is charged with provide for the offense of murder and the punishment for it as follows: 33. “ 203. Any person who, of Malice aforethought, causes the death of another person by an unlawful act or omission is guilty of murder. 204. Any person who is convicted of murder shall be sentenced to death." The key vital elements to prove murder beyond reasonable doubt are:- https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19704/eng@2025-08-04 4

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a. The fact of the death; b. Cause of death; that is, it was caused as a result of an unlawful act or omission; c. Proof that the accused person act or omission was the causation, and d. whether, if the accused caused the death, he did it with malice aforethought. 34. The first element of death was proved by the post-mortem report (P Exh 3) filled and produced by PW9 which revealed that, the deceased died as a result of cardiac tamponade following sharp/blunt trauma to the myocardium. Other contributing causes were head injury and chest injury due multiple sharp and blunt force trauma. 35. On the second element, that the death was caused as a result of an unlawful act or omission, PW7 and PW8 confirmed finding the deceased in a pool of blood unconscious and took him hospital. The deceased succumbed to his injuries three days later while admitted in the intensive care unit. A fact that was not disputed. PW9 confirmed that the deceased death was not as a result of natural causes and there are no medical records to state otherwise in any case the deceased as is evidenced had been imbibing alcohol a few hours before being discovered unconscious as such would lead one to the logical opinion that he was in good health prior to the injuries leading to his death. 36. On the third element of whether it was the Accused who caused the Deceased's unlawful death. PW1 stated that he saw the accused initially engage in a physical altercation with deceased bare hand at the workshop and managed to separate them. He added he saw the Accused stab the deceased and the deceased tried to seek cover behind door to avoid more stabs. The deceased let go of the door and fell down on the spot and he saw he had been stabbed on the head. 37. PW7 and PW8 confirmed recovering a chisel from the Accused back pocket. The accused was presented by counsel and did not challenge production of the chisel. PW8 produced the bloodied shoes which he testified belonged to the Accused and were collected from the scene. This is something that was also not challenged. Ownership of the shoes or that they were collected from the scene was not disputed. 38. Further to the foregoing accused (DW1) confirmed in his sworn testimony to getting physical with the deceased then the deceased fell down, he slept and thought the deceased had blacked out and would wake up in the morning. 39. The evidence presented and the defence testimony is incompatible with the innocence of the Accused. there is direct evidence linking him to the murder. Not only was he seen committing the offence, he was caught with the murder weapon identified by the sole witness to the crime and the officers who searched him. 40. I find that Accused’s defense that, he fought with the deceased who fell down unconscious corroborated the prosecution case that Accused was the one that caused the injuries of the deceased which subsequently led to his death. There is no other reasonable hypothesis other than that of guilt. This element was adequately proved. 41. On the fourth element of whether there was malice aforethought, Section 206 of the Penal Code defines Malice aforethought as follows: “ 206. Malice aforethought shall be deemed to be established by evidence proving any one or more of the following circumstances— https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19704/eng@2025-08-04 5

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42. 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.” In addition, the Court of Appeal in the case of Joseph Kimani Njau v R [2014] KECA 229 (KLR) held that:“ (12) In all criminal trials, both the actus reus and the mens rea are required for the offence charged; they must be proved by the prosecution beyond reasonable doubt. The trial court is under a duty to ensure that before any conviction is entered, both the actus reus and mens rea have been proved to the required standard…. (13) In the case of Nzuki – vs- Republic, (1993) KLR 171, this Court stated that malice aforethought is a term of art and emphasized that: Before an act can be murder, it must be aimed at someone and in addition, it must be an act committed with one of the following intentions, the test of which is always subjective to the actual accused:i. The intention to cause death; ii. The intention to cause grievous bodily harm; iii. Where the accused knows that there is a serious risk that death or grievous bodily harm will ensue from his acts, and commits those acts deliberately and without lawful excuse with the intention to expose a potential victim to that risk as the result of those acts. It does not matter in such circumstances whether the accused desires those consequences to ensue or not and in none of these cases does it matter that the act and the intention were aimed at a potential victim other than the one who succumbed. The mere fact that the accused’s conduct is done in the knowledge that grievous harm is likely or highly likely to ensue from his conduct is not by itself enough to convert a homicide into a crime of murder. (see Hyman – vDirector of Public Prosecutions, [1975] AC 55”.” 43. The Court of Appeal in Watulo & another v Republic [2023] KECA 1541 (KLR) stated as follows: The question that follows is whether the appellants had malice aforethought. As per Section 206 of the Penal Code, some of the factors that will demonstrate that there was malice https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19704/eng@2025-08-04 6

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aforethought are the intention to cause death or grievous harm, or, the knowledge that an act or omission might cause death or grievous harm. As held in Republic vs. Tubere s/o Ochen [1945] 12 EACA 63 malice aforethought can be discerned from the nature of the weapon used; the manner in which it was used; the part of the body targeted; the nature of the injuries inflicted; and, the conduct of the accused before, during and after the incident. (Emphasis) 44. It is not disputed that the accused and the deceased had an altercation and that they both had on that material day been consuming alcohol, save that the deceased stopped at some point and the Accused continued with the partaking. This is fact that that the Accused acknowledged. 45. The extent of the injuries inflicted is manifest that they were not caused by bare hands or fist-fight as alluded to by the Accused in his evidence but rather, by an external physical object which caused multiple sharp and blunt force trauma to the head and sharp blunt trauma to the myocardium, the heart. The injuries were repeated and not random. Even the body parts where the injuries were inflicted were major and ordinarily if targeted in an attack would cause serious and important body functions to fail. 46. In Morris Aluoch v Republic [1997] KECA 29 (KLR) the Court of stated as follows: “ If repeated blows inflicted the injury then malice aforethought could well be presumed but in this case we have to contend with one single blow which caused perforation of the intestine which led to internal bleeding which did not become apparent until after the death of the deceased some four days later. In the case of REX VS TUBERE S/O OCHEN (supra) the assault was of a serious nature causing severe injuries from which the victim died shortly afterwards. In that sense, the case of TUBERE is distinguishable. It was correctly pointed out in TUBERE case as follows;“With regard to the use of stick(s) in cases of homicide, this Court has not attempted to lay down any hard and fast rule. It has a duty to perform in considering the weapon used and the part of the body injured, in arriving at a conclusion as to whether malice aforethought has been established, and it will be obvious that ordinarily an inference of malice will flow more readily from the case, say, of a spear or knife than from the use of a stick; that is not to say that the Court takes a lenient view where a stick is used. Every case has, of course, to be judged on its own facts. The same remarks applies as regards the view that which this Court takes were a ruptured spleen is the cause of death.” 47. In the case of Roba Galma Wario vs Republic [2015] KECA 521 (KLR), the Court of Appeal held that:“ (26) 48. For the conviction of murder to be sustained, it is imperative to prove that the death of the deceased was caused by the appellant; and that he had the required malice aforethought. Without malice aforethought, the appellant would be guilty of manslaughter, as it would mean the death of the deceased during the brawl was not intentional.” It is very clear from the evidence tendered that the accused nurtured anger after being referred to a “ngetai” uncircumcised one. The injuries were repeated. PW1 confirmed that the deceased had to hide behind a door to protect himself from more injuries then fell down. The Accused even after seeing https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19704/eng@2025-08-04 7

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the accused fall down did not assist him, with indifference and callousness he proceeded to sleep at the scene saying he assumed that the deceased had blacked out. 49. There is no indication that prior to the altercation, the deceased showed signs of being too intoxicated that he would have blacked out on the ground. The level of intoxication for either of them was not ascertained. The Accused did not also plead intoxication to preclude malice. 50. Given the nature of injuries sustained by the deceased, ill motive can be inferred from the actions of the accused. The Accused could have stopped at the first fist fight. Going back and choosing to inflict pain for being insulted with a weapon shows intention to cause grievous harm. The degree of retaliation as evidenced by the injuries, the conduct thereafter, and even with the lethal nature of the weapon used indicates intention to cause grievous harm. 51. I find that the Prosecution discharged the burden to proof beyond reasonable doubt that the Accused person, unlawfully caused the death of John Karanja Murira with Malice aforethought. 52. I therefore find you Peter Mwangi Muraimu guilty of the offence of murder and convict you accordingly. 53. Mitigation and Sentencing shall await the preparation of the Pre-Sentence and Victim impact statements by the Probation department. It is so ordered. DATED, SIGNED AND DELIVERED AT NAKURU ON THIS 4TH DAY OF AUGUST 2025 ........................... MOHOCHI S.M. JUDGE https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19704/eng@2025-08-04 8

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