Republic v James Mpungu Mucee

The Prosecution’s Case 4. PW1 Pauline Mwende testified that on 17/06/2023 at about 4.00pm she left home with the deceased who is her sister and their mother and proceeded to the forest where they intended to correct firewood. The deceased was ahead of her and their mother was behind them. On the way she heard noises like some tree brandies or leaves had fallen down. The deceased drop her panga, rope and a sack then started running away. PW2 say a man behind her telling her to stop so that she could extract it. The deceased was running towards where her mother was and on reaching her she fell down. 5. PW1 ran there and noticed that the deceased was bleeding for her chest. That was an arrow that had pieced her chest. The accused had told the deceased to stop so that he could remove something. He removed a stick from the chest of the deceased. 6. The accused and her mother rushed the deceased to hospital PW1 testified that the accused is the one who had the bow and arrow and was telling the deceased to stop so that he could remove it. In crossexamination, PW1 told the court that she had not realized what had happened until she heard the accused to stop. He then removed the stick of the arrow from the deceased’s chest. 7. PW2 Beatrice Wereri Mbenji who is the complainant’s mother gave similar evidence to that adduced by pw1 and corroborated her testimony. In addition, she told the court that the deceased went to where she was while running and she realized that she had been stabbed with an arrow on the chest. That the accused came to where she was while running and holding a bow and arrows. The accused said he had killed somebody, a child of Mugendi. She told the accused that Gacheri will not die and he should assist to take her to hospital as he had shot her with an arrow. 8. She looked for a motor bike which assisted her to take the deceased to hospital. On reaching the hospital the deceased was pronounced dead. She then proceeded to the Police Station and reported. She also found that the accused had reported that he had killed somebody and was placed in the cells. 9. PW3 Daniel Mukundi Nyaga testified that on the material day at 4.30pm when he heard screams coming from the forest. He decided to go and assist as he had a motor bike. He met the deceased who was bleeding from the chest and was with her mother. The child was placed on the motor bike and was accompanied by her mother. She took them to hospital. The child was pronounced dead by the doctor. He accompanied the father of child to the police station where they found that the accused had already reported the matter. He told the court that the deceased had an injury on the chest which was bleeding. He did not know how the injury was inflicted. 10. PW4 No. 11673 PC Enaka Salesio is a Police Constable Stationed at Kathwana Police Station where the report was made. He testified that on 17/6/2023 at about 4.00pm while at the police station he received a report from his work mate, Corporal Kinyua informing him of the murder incident. He was instructed to go to Komarok Hospital and he proceeded there. He found the dead body of the deceased Lenah Gacheri. 11. He then proceeded to the scene which was at Tuamikwo in Kathanji Location. There was a road which was leading to a hill and there were farms. The parents of the deceased showed him where the deceased was shot with an arrow. At the scene he recovered a bow and four arrows. One of the arrows did not have an arrow head. He recovered the exhibits, bow exhibit 1, four arrows with one which had no arrow head, exhibit 2, he took them to the police station. 12. The following day the accompanied the scenes of crime officers to the scene and photographs were taken. He met the accused at the police station where he surrendered on learning that the child had passed away. In cross-examination PW4 testified that the bow and arrows were recovered where the https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4289/eng@2026-03-17 2

page 2 of 7

accused dropped them when taking the child to hospital. That the scene was pointed out by the parents of the deceased. 13. PW5 Police Constable Amos Kipkoech Simwato testified that on 17/06/2023 he was at Kachwana Police Station when the accused went there and reported that he had shot a child who he thought was a monkey. The parents of the child then went to the police station with a group of ten people who were agitated. He placed the accused in custody. The parents reported that he child had passed away. 14. PW6 Doctor Nicholas Nkonge a medical officer at Chuka Referal Hospital testified and holds a Bachelors Degree in medicine and surgery from Charles University Czek Republic. He testified that on 21/6/2023 he performed a postmortem on the body of the deceased Lenah Gacheri aged 12 years at Chuka Hospital. He told the court that he had a penetrating would on the left side of the chest between 3rd & 4th rib, one inch in length. Internally there was blood in the chest cavity measuring two liters. The arrow head was instituting the left ventricle and rig lung. On the chest with a fractured rib. The cause of death was the penetrating arrow shot on the chest leading to blood loss. The deceased had no other injury. He produced the postmortem form as exhibit 1. 15. PW7 Police Constable Moris Okinda testified that he as attached to the DCI Meru South performing investigations duties. He told the court that he is the one who investigated the case. He testified that on 18/06/2023 he received a report from the OCS Kathwana Police Station about a suspected murder incident. He proceeded to the police station where he met the accused who he interrogated him. He then proceeded to the scene and he was able to find an arrow, arrow heads, shoes of the victim and ropes which the victim was to use to carry firewood. He recovered the exhibits and brought them to court. He recorded statements of witnesses. 16. A postmortem was conducted and obtained the postmortem form and was produced in court as exhibits. He then forwarded the file to the office of the Director of Public Prosecutions. The accused was then charged with the offence of murder. In cross-examination he testified ha the exhibits were recovered on 18/6/2023 and were handed over to him. He did not recover the exhibits. The prosecution closed its case and the accused was put on his defence. Defence 17. The accused gave a sworn defence and told the court that on 17/6/2023 he went to his farm which borders Njuguni Forest. At 1.00pm there were monkeys in the farm which had come from the forest and invaded his shamba. He decided to chase them away. He then saw a place where some leaves were disturbed. He suspected it was a monkey and shot an arrow to chase it away. He immediately heard the cry of a child from where he shot the arrow. He ran there and realized it was a child and she had run to where the mother was. The mother said she could take the child to hospital. He carried the child and they took the child to hospital but she was pronounced dead. He proceeded to Kathwana Police Station and reported the matter. He was placed in the cell and was later charged with this offence. He told the court that he had no intention to kill the child. That they had lived as neighbors and had lived peacefully. 18. He further told the court that he went to the police station voluntarily and reported what transpired. He was then placed in the cell. That the incident was bad luck and there was not intention or bad motive. That he had not planned to kill the child. The defence of the accused was not challenged in cross-examination. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4289/eng@2026-03-17 3

page 3 of 7

Submission Defence submission 19. It is submitted that there was convergence between the prosecution and defence on control parts regarding what transpired. That there is no dispute that the deceased died as result of a wound caused by a single arrow shot by the deceased. The deceased relies on Republic -vs- Ekai Criminal Case No. 6 of 2017 (2023) KEHC 3397 KLR where the court held that: “ In criminal cases, for the prosecution to secure a conviction on the charge of murder, it has to prove three ingredients against the accused. The court of Appeal at Nyeri In Criminal Appeal No. 352/2012 Ndegwa Ngari -vs- Republic 2014 summed up the elements of the offence of murder as follows: 20. a. That the death of deceased occurred. b. That the accused committed the unlawful act which caused the death of the deceased. c. That accused had malice aforethought. The defence submits that two elements are not in dispute. That Section 206 of the Penal Code defines malice aforethought and provides: “ Malice aforethought shall be deemed to be established by evidence proving any one or more of the following circumstances— 21. (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.” He submits that the prosecution did not prove the presence of any motive by the accused to harm the deceased. That the defence of accused as to what transpired was not challenged. He relies on Raphael Mbuvi Kimasi -vs- Republic Nyeri CA 61/2013 where the court of Appeal held that: “ …but just as the presence of motive can greatly strengthen its case, the absence of it can weaken the case.” https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4289/eng@2026-03-17 4

page 4 of 7

Analysis and Determination 22. I have considered the prosecution evidence, the defence of the accused and the submissions. The issue which arises for determination is whether the accused caused the death of the deceased with malice aforethought. Section 203 & 204 of the Penal Code provides as follows: “ 203. Murder Any person who of malice aforethought causes death of another person by an unlawful act or omission is guilty of murder. 204. Punishment of murder Any person convicted of murder shall be sentenced to death” 23. 24. The ingredients of the offence of murder which the prosecution has to prove in order to sustain a conviction are: 1. That the death of the deceased occurred. 2. That the accused committed the unlawful act that result in the death of the deceased 3. That the accused had malice aforethought. I will proceed and consider whether these were proved. 1. Whether the death of deceased occurred 25. This can be proved by direct evidence of witnesses and corroborated by medical evidence. In this case the prosecution relied on evidence of witnesses an medical evidence. The prosecution called PW2 who confirmed that the deceased died. The accused himself confirmed that they were informed by the doctor that the deceased was already dead by the time they reached the hospital. The prosecution called doctor Nkonge who performed the postmortem on the body of the deceased and formed the opinion that the cause of death was severe blood loss secondary to penetrating arrow shot in the chest in the left ventricle and right lung. The post mortem form was produced as Exhibit 1. I find that he prosecution discharged the burden to proof that the deceased died. (2) Whether the death was caused as a result of unlawful act 26. This is the actus reus which determines whether the act causing the death was committed by the accused. The prosecution adduced evidence that the accused is the one who shot an arrow at the deceased and it penetrated her chest. This was stated by PW1 who was with the deceased at the material time and she heard when she suddenly screamed and went to where her mother. The accused merged offering to remove the arrow from the chest of the deceased. 27. The accused himself does not deny that he is the one who shot the deceased. He stated that leaves were disturbed and he suspected that it was a monkey. Without confirming that it was a monkey that disturbed the leaves, he shot at it. He realized when it was too late that he had shot the deceased and not a monkey. 28. I find that he prosecution proved that it is the accused who caused the injury that led to the death of the deceased. This issue was not in dispute as the accused readily admit that he is the one who shot the deceased. The action was unlawful as he acted recklessly by shooting without verifying whether it https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4289/eng@2026-03-17 5

page 5 of 7

was a person or animal. Further the law prohibits killing of wild animals. Section 95 of the Wildlife and Conservation Management Act makes at an offence for any person to kill or injure wild animals. So, the accused when he set out to kill monkeys was committing an unlawful act which unfortunately led to the death of the deceased. The prosecution proved that it is the accused who committed the unlawful act. Whether there was malice aforethought 29. The other issue which the court has to consider is whether the accused had malice aforethought. Section 206 of the Penal Code (supra) defines malice aforethought. This is also what defines criminal liability. The court of Appeal in Joseph Kimani Njau -vs- Republic (2014) eKLR, cited the decision of the court in Nzuki -vs- Republic (1993) KLR 171 and held as follows: “ 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. 30. i. Intent to cause death ii. The intention to cause grievous harm. iii. Whether 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.” The issue is the intention whether aimed at the potential victim. Other than the one who actually succumbed. In Hyman -vs- Director of Public Prosecutions (1975) AC 55 “ The mere fact that the accused’s conduct is done in the knowledge grievous harm is likely or highly likely to ensure from his conduct is not by itself enough to convert a homicide into a crime of murder.” 31. In this case the facts do not disclose malice aforethought as defined above. There was absence of motive as the accused had no intention to harm the deceased or any other person for that matter. The accused had no motive and the absence of motive weakens the case. The court of Appeal in Nzuki -vs- Republic (supra) stated that: “ There was complete absence of motive and there was absolutely nothing on record from which it can be implied that eh accused had nay one of the intentions outlined for malice aforethought when he unlawfully assaulted the deceased with the fatal consequences.” 32. The Court of Appeal held that, “ In the absence of proof of malice aforethought to the required standard, the appellants conviction for the of murder is unsustainable. His killing of the deceased amounted only t manslaughter.” 33. In this case the arrow shot by the accused was not aimed at the deceased in this case. It was a fact of missed imagined target as he innocently believed that the commotion in the bush was a monkey. He did not give it a second thought, he only realized when he heard the child crying as she is the one who was shot. The deceased sustained fatal injury and succumbed. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4289/eng@2026-03-17 6

page 6 of 7

34. There was no prof of malice nor was there any motive to cause the death of deceased. The killing where no malice is proved is termed as manslaughter. It can result from an accident, circumstances which amount to bad luck or inadvertent. The killing of the deceased was without malice on the part of the accused and amounts to manslaughter. 35. I find that the facts adduced by the prosecution has not established the guilty of the accused as charged. The facts of the case disclose the lesser charge. In Nzuki -vs- Republic, the Court of Appeal held that “ In the absence of proof of malice aforethought to the required standard, the appellant’s conviction for the offence of murder is unsustainable. His killing of the deceased amounts only to manslaughter.” 36. In this case I find that the accused is not guilty of murder as that chare has not been proved to the required standard. The killing of the deceased amounted to manslaughter. As provided under Section 179 (2) of the Criminal Procedure Code (Cap 75 Laws of Kenya) a person may be convicted of the minor offences although he was not charged with where the particulars disclose a complete minor offence. Conclusion 37. For the reasons stated in this Judgment, the accused is acquitted of the offence of murder and convicted for the offence of murder contrary to Section 202 as read with Section 205 of the Penal Code. It is so ordered. DATED, SIGNED AND DELIVERED AT MERU THIS 17TH DAY OF MARCH, 2026. HON. LADY JUSTICE L. GITARI JUDGE https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4289/eng@2026-03-17 7

page 7 of 7