Republic v Agnes Kalekye Munguti

assisted in escorting the deceased to hospital together with the boda boda rider, PW2. He testified that the deceased was still able to talk at the time and that his clothes were blood-soaked. 7. PW4, Paul Muthama, testified that the deceased was his uncle. He stated that the deceased had been stabbed with two wounds on the body, one on the right side. He confirmed under cross-examination that the deceased and the accused used to have squabbles in the past and that the deceased used to take alcohol, though he was not violent when he was not intoxicated. 8. PW5, Catherine Ndungwa, a minor daughter of the accused and the deceased aged 17 years, testified that on the material evening, her parents had returned from Nairobi where they had gone to conclude the sale of a piece of land. She stated that an argument ensued over money realised from the sale, that her stepfather (the deceased) removed items from the house and threw them outside, smashed a mobile phone, and chased her mother out of the house. She testified that she and her siblings were ordered out of the house before the stabbing occurred and that she did not witness the actual act. She confirmed that a kitchen knife, earlier used by the children to peel pineapples, had been left on the table. 9. PW6, Faith Syombua, a minor daughter aged 13 years, testified after a voir dire examination. She corroborated her sister's account of the quarrel, the smashed phone, and her stepfather chasing her mother. She stated that she heard her father screaming outside the gate claiming that he had been stabbed, but that she did not witness the stabbing itself. 10. PW7, Michael Kioko Munguti, the deceased's stepbrother, testified that the relationship between the accused and the deceased was frosty and that they used to fight frequently. He confirmed that the knife recovered was the one from the kitchen and produced the post-mortem report as an exhibit. 11. PW8, PC Walter Kagondu, testified that he received a telephone call from the area chief of Ikombe location informing him that a woman had killed her husband. He proceeded to the scene, found the accused person outside her home, and arrested her. He recovered the murder weapon, a knife, which he produced in evidence. 12. PW9, Rosalia Kamene Munguti, the deceased's mother, testified that the marriage between her son and the accused had problems, that the accused would leave for her parents' home and return, and that on a previous occasion the accused had struck the deceased with a stone on the head, causing him to bleed. Under cross-examination, she confirmed that she found the accused person outside holding a baby, that the accused was not violent at the time and could not be confirmed to be intoxicated, that the accused totally cooperated with those present, and that she personally could not locate the area of the stab wound. She further confirmed that the family, as elders, had never reported the earlier stonethrowing incident to the police and had not attempted to resolve the couple's disputes. 13. PW10, Dr. Anthony Irungu, a Consultant Pathologist, testified that he conducted the post-mortem examination on the body of the deceased. He observed a penetrating stab wound on the right anterior chest wall measuring five centimetres, sutured with six stitches, and a further stab wound on the right lower abdomen. Internally, the chest wound extended through the chest wall muscles and through the first rib, with a complete fracture of the rib and perforation of the right lung. He formed the opinion that the cause of death was a stab wound inflicted with a sharp object, and noted massive bleeding with a total of approximately two litres of blood loss in the chest cavity. Under cross-examination, he conceded that the purple discolouration observed occurred after the body had been placed on the examination table, and that the deceased had a mildly enlarged heart, though this did not affect the flow of blood or the finding as to cause of death. 14. PW11, David Kihipa Wafula, testified that he recorded a confession statement from the accused on 8th March 2019 at the DCIO's office, Kangundo, in the presence of the accused's cousin, one Mary https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12271/eng@2026-07-29 2

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Mumbua Mbiti. He stated that he followed the Rules of Confession of 2009, cautioned the accused, and informed her of her rights. Under cross-examination, he conceded that the recording of the statement took approximately two hours and nine minutes with only one break of ten minutes, that paragraph seven of the confession was not signed and that no OB number was recorded, and that he had never met the accused prior to that day and could not independently confirm whether she had sustained any injuries. He further conceded that the alleged confession was recorded two weeks after the arrest and that she was not availed to any court within that time. He confirmed that he had no right to physically examine her and relied only on a verbal enquiry as to her wellbeing. He stated that while he had been informed she was attacked by the deceased's family, he was not aware that she had been forced to come to the police station, and he denied that he had deprived her of contact with her infant child. He stated that the confession was recorded by him at Kangundo, not Matungulu, and that it was recorded in English and explained to the accused in Kiswahili. 15. PW12, PC Peter Orwa, the investigating officer, testified virtually. He narrated that the deceased and the accused had travelled to Nairobi to conclude the sale of a parcel of land known as Donyo Sabuk, Komarock Block 1/7702, for a consideration of Kshs. 500,000 by cheque and Kshs. 20,000 in cash. He testified that upon returning to Koma, the deceased proceeded to a shopping centre and continued drinking, and that he had consumed a substantial quantity of beer before returning home at about 8.30 p.m., where the accused waited for him. He narrated that the deceased was not in a stable mind because of the beer he had drunk, and that when the fight broke out at home, the accused was overpowered by the deceased, whereupon she reached out for the knife on the table and stabbed the deceased on the right shoulder; that on seeing he was bleeding, she tried to stop it and sent her children to find assistance. On cross-examination, he stated that it was the deceased who initiated the fight by grabbing the accused's phone, and that the knife was already on the table. He confirmed that the opinion was that it was a single stab wound. He clarified that the accused was in custody pursuant to orders obtained from Kangundo court, but conceded that he did not file the said orders, and further clarified that the confession needed to be recorded by an officer of the rank of chief inspector or above, and that there was no such officer at his Matungulu station hence the transfer to Kangundo. He stated that he could not remember the infant being present at the time of recording, and denied that he had threatened her. 16. At the close of the prosecution's case, this Court found that a prima facie case had been established and the accused was placed on her defence. She elected to give a sworn statement. 17. DW1, Agnes Kalekye Munguti, the accused, testified that she and the deceased travelled to Nairobi to conclude the sale of their land and that, while there, the deceased pressed her to take alcohol with him, which she did. She stated that upon returning home, while she was in the kitchen preparing food, the deceased demanded the documents relating to the sale and the money realised therefrom. She testified that he snatched her mobile phone and the plate on the table and smashed them to the floor, that she refused to assist him in calculating the sums as he was, in her words, not in a stable mind due to the beer he had taken, and that a fight broke out between them in which she was overpowered by the deceased. She stated that in the course of that struggle, near the table where the knife used earlier to peel pineapples lay, the deceased was stabbed. She maintained that on seeing what had happened, she tried to stop the bleeding, sent her children to call for the neighbours and her grandmother, and reached out for assistance in transporting the deceased to hospital. She reiterates that she did not wish to kill her husband. He later succumbed to his injuries at about 3.30 a.m and she was informed of his death around 4am. 18. Under cross-examination, DW1 maintained that she did not go to the kitchen armed with any intention to harm the deceased, that the knife was already on the table from the children's earlier use, and that the deceased was the aggressor throughout the confrontation. She denied that her confession https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12271/eng@2026-07-29 3

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statement was voluntary, stating that she was made to believe she would not see her eight-month-old child again if she did not sign it, and that she was under considerable distress at the time it was recorded. 19. Both parties indicated they would file written submissions. But by the time of writing this judgment, none had been filed and the court therefore proceeds to determine the matter based on the evidence on record. Analysis and Determination 20. I have considered the evidence tendered by both the prosecution and the defence. It is the duty of the prosecution to prove the guilt of the accused to the required standard of beyond reasonable doubt. 21. The accused is facing a charge of murder contrary to Section 203 of the Penal Code, which provides that:“ Any person who of malice aforethought causes death of another person by an unlawful act or omission is guilty of murder." 22. In Anthony Ndegwa Ngari v Republic [2014] eKLR , the Court of Appeal identified three ingredients that the prosecution must prove beyond reasonable doubt to sustain a conviction for murder: (a) the death of the deceased and the cause thereof; (b) that the accused committed the unlawful act which caused that death; and (c) that the accused acted with malice aforethought. This formulation has been consistently applied, including in Joseph Kimani Njau v Republic [2014] eKLR and, more recently, in Republic v Kinuthia [2025] KEHC 4929 (KLR), where the Court, citing Joseph Githua Njuguna v Republic (2016) eKLR, restated the ingredients as proof of the occurrence and cause of death, that the death was unlawful, proof of commission by the accused, and malice aforethought. I will consider each ingredient in turn. 23. As to the fact and cause of death, the evidence leaves no doubt whatsoever. PW10, the pathologist, found a penetrating stab wound to the chest with fracture of the first rib and perforation of the right lung, and formed the opinion that death was caused by a stab wound inflicted with a sharp object. This finding is corroborated by PW3, PW4, PW7, and the accused's own account. I am satisfied that the prosecution has proved beyond reasonable doubt both the fact of death and that death was caused by a sharp object. 24. As to whether it was the accused who caused the death, this is not seriously in dispute. The accused herself, in her sworn testimony, admitted that the stabbing occurred in the course of a physical confrontation between her and the deceased inside their home, and that no other person was present. I find that the prosecution has established, and the defence does not deny, that it was the accused's act, in the course of that struggle, which caused the fatal injury. 25. The third and determinative ingredient is whether the accused acted with malice aforethought. Section 206 of the Penal Code provides that malice aforethought is established by proof of an intention to cause death or grievous harm, knowledge that the act will probably cause death or grievous harm with indifference as to whether it is caused, an intent to commit a felony, or an intention to facilitate flight from custody. It is on this element that the present case departs materially from ordinary similar trials, and I make the following observations. 26. First, on the question of proof by circumstantial evidence, it is settled that where reliance is placed on circumstantial evidence, the inculpatory facts must be incompatible with innocence and incapable https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12271/eng@2026-07-29 4

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of explanation on any hypothesis other than guilt: Sawe v Republic [2003] eKLR. There was no eyewitness to the stabbing itself. PW1 conceded she did not witness it. PW5 and PW6, the minor children, were out of the house before it occurred and only heard screaming thereafter. PW9, the deceased's own mother, arrived only after the fact and could not even locate the site of the wound. The account of how the stabbing occurred therefore rests substantially on the version given by the accused herself, which is not contradicted by any witness who was actually present, and the evidence does not exclude the reasonable hypothesis that the fatal contact with the knife occurred in the course of a struggle rather than by a deliberate blow. 27. Second, the evidence of PW4, PW5, PW6, and PW7 establishes a documented history of a volatile and at times violent relationship between the accused and the deceased, including a prior incident, confirmed by the deceased's own mother, in which the accused struck the deceased with a stone. This history was never addressed by the family as elders, nor reported to the police. This history of domestic violence, it is material context of the relationship between the parties and also sheds light on the sequence of events of the fateful day. 28. Third, and significantly, the evidence establishes that a physical altercation, provoked in material part by the deceased, preceded the stabbing. PW12 confirmed that the deceased had been drinking substantially that evening following the land transaction and that the altercation was initiated by the deceased. PW5 and PW6 testified that the deceased, on returning home intoxicated, smashed the accused's phone, demanded the sale documents, and pursued her about the house and chased them out of the home. The accused's account, uncontradicted by any eyewitness, is that the deceased overpowered her physically and that the fatal contact with the knife, already present on the table from the children's domestic use, occurred in the course of that struggle rather than as a premeditated act. Where an accused establishes provocation or self-defence, this operates not merely in mitigation but to negate malice aforethought itself. In Elphas Fwambatok v Republic [2009] eKLR , the Court of Appeal held that a person who is provoked and acts in anger suffers a form of diminished responsibility, such that a successful plea of provocation eliminates the mens rea of malice aforethought and reduces the offence to manslaughter. Likewise, in Ahmed Mohammed Omar & 5 others v Republic [2014] eKLR, adopting the common law principles in Palmer v R [1971] AC 814), it was held that a successful defence of self-defence disproves both the unlawfulness of the act and the existence of malice aforethought. I am further guided by, Bonaya Tutu Ipu & another v Republic (2015) eKLR , which held that intention is rarely proved by direct evidence and is more frequently inferred from the surrounding circumstances, including the weapon used, the injuries inflicted, and the accused's conduct before, during, and after the act. Here, a single wound, an unplanned and sudden domestic confrontation, as well as the absence of any established motive beyond an ongoing quarrel, all militate against the ready inference of malice that might attend more sustained or repeated violence. 29. Fourth, and of particular weight, I note that this account of the struggle is not confined to the accused's own testimony. PW12, the investigating officer called by the prosecution itself, gave evidence, both in his narration and under cross-examination, that it was the deceased who initiated the confrontation by grabbing the accused's phone, that the deceased was intoxicated and not in a stable mind, that the accused was overpowered by the deceased before she reached for the knife already on the table, and that a single stab wound resulted. This collaboration, coming from the prosecution's own investigating witness rather than from the accused alone, materially strengthens the case for finding that the killing occurred in the course of a sudden struggle rather than as a premeditated act, and correspondingly weakens the inference of malice aforethought. 30. Fifth, the conduct of the accused immediately following the incident is inconsistent with an intention to kill. PW9, the deceased's own mother, confirmed under cross-examination that on arriving at https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12271/eng@2026-07-29 5

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the scene she found the accused "trying to get the deceased to hospital," that the accused was not violent, and that she cooperated fully throughout. PW2 and PW3 confirm that it was the accused who summoned the boda boda operator and arranged for the deceased to be rushed first to a private clinic and then to Kangundo Level 4 Hospital. She also sent her children to raise the alarm and call for family assistance. Such conduct, immediately and voluntarily undertaken, sits uneasily with a finding of malice aforethought, and is more consistent with a person who caused a fatal injury in a sudden struggle and then sought urgently to save the life she had endangered. 31. Sixth, I turn to the confession statement recorded by PW11 and produced as an exhibit. Section 25 of the Evidence Act defines a confession as words or conduct from which an inference may reasonably be drawn that the maker has committed an offence. Section 25A(1) further provides that a confession is inadmissible unless made in court, or before a police officer not below the rank of Chief Inspector together with a third party of the accused's choice, in accordance with the Evidence (Out of Court Confessions) Rules, 2009. Section 26 renders a confession inadmissible where it appears to have been caused by an inducement, threat, or promise from a person in authority sufficient to give the accused reasonable grounds to believe she would gain an advantage or avoid an evil by making it, and Section 27 restores admissibility only once such impression has been fully removed. It is settled that confessions in Kenya are, as a general rule, inadmissible unless they pass muster under these rigid statutory safeguards, a position informed by both the Constitution and the country's history of confessions extracted through improper means; it is the prosecution's burden to prove, affirmatively, that the confession was voluntary. In Kanini Muli v Republic [2014] eKLR the Court of Appeal likewise emphasised the necessity of proper caution before any confession is recorded. I note, in the accused's favour on the question of rank compliance, that the recording was moved to Kangundo precisely because no officer of the required rank of Chief Inspector was stationed at Matungulu; to that limited extent, the rank requirement under Section 25A appears to have been observed. 32. Applying those principles, I note that the recording officer, PW11, conceded that paragraph seven of the statement was unsigned, that no OB number was captured, that the statement was recorded over approximately two hours and nine minutes with only a single ten-minute break, and that he had no means of physically confirming the accused's condition or wellbeing at the time, relying instead on a general verbal enquiry, having never met her before that day. More troubling still, both PW11 and PW12 confirmed that the confession was recorded some two weeks after the accused's arrest, and that she was not availed to any court within that period, and PW12 could not produce the orders under which he claimed she had been held in custody pending that time. Article 49(1)(f) and (g) of the Constitution, as read with Section 36 of the Criminal Procedure Code, requires an arrested person to be brought before a court as soon as reasonably possible and, ordinarily, not later than twenty-four hours after arrest, absent a court order sanctioning further detention for the purposes of investigation. A confession obtained after a fortnight of unproduced, and on this record unexplained, custody is inherently more vulnerable to a finding of involuntariness, regardless of the good faith of the individual officer who eventually recorded it. Set against this is the accused's own evidence that she believed she would be permanently separated from her eight-month-old child unless she signed the statement, an assertion falling within the class of inducement contemplated by Section 26 of the Evidence Act. I note that PW11 denied depriving her of contact with her child, and that PW12 could not recall the infant being present and denied threatening her; these denials, however, do not fully dispel the doubt raised by the accused's account, particularly when read against the backdrop of a prolonged and unproduced period of custody preceding the confession. Applying the settled principle that any doubt as to voluntariness must inure to the benefit of the accused, I decline to treat the confession as a safe or sufficient basis, on its own, for a finding of malice aforethought, and I accord it limited weight. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12271/eng@2026-07-29 6

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33. Taking the whole of the evidence together, albeit the absence of any eyewitness to the stabbing, the established history of volatility between the parties, the immediate physical struggle instigated in material part by an intoxicated deceased and corroborated by the prosecution's own investigating officer, the accused's own conduct in seeking urgent medical assistance rather than fleeing or concealing the act, and the diminished reliability of a confession recorded after a prolonged and unproduced period of custody, I am not satisfied that the prosecution has proved, to the standard of beyond reasonable doubt, that the accused acted with malice aforethought as required by Section 206 of the Penal Code. I am fortified in this conclusion by the reasoning of the Court of Appeal in Nzuki v Republic [1993] KLR 171, where a murder conviction was substituted with one for manslaughter in materially similar circumstances, namely a sudden physical assault, absence of established motive, and failure to exclude the reasonable possibility that the accused acted without the requisite intent. The same approach was taken in Roba Galma Wario v Republic [2015] and affirmed in Waweru v Republic [2023] KECA 622 (KLR), both holding that a death occurring during a brawl, without proof of malice aforethought, sustains only a conviction for manslaughter. 34. Section 179 of the Criminal Procedure Code provides that where the evidence establishes that an accused committed an offence other than the one charged, being an offence the court has jurisdiction to try, the accused may be convicted of that other offence though not so charged. Manslaughter is a minor and cognate offence to murder for this purpose, being a lesser offence that is related to the greater offence because it shares several of its elements and is of the same class or category. The Court of Appeal in the case of Rashid Mwinyi Nguisya & another v Republic [1997] KECA 397 (KLR) confirmed that Section 179 sets out this general principle independently of the special cases in Sections 180 to 190 of the Criminal Procedure Code, and Section 215 of the same Code empowers a trial court to convict of the lesser offence proved where the offence charged is not established. This power was exercised in materially similar circumstances in Republic v Paul Omondi Odongo Criminal Case 22 of 2016, where the High Court, having found malice aforethought unproved in the context of an unclear fight with no established motive, acquitted the accused of murder and instead convicted him of manslaughter contrary to Section 202 as read with Section 205 of the Penal Code. 35. I accordingly, find the accused guilty of the lesser offence of manslaughter contrary to Section 202 as read with Section 205 of the Penal Code and convict her accordingly. It is so ordered. JUDGMENT DATED, SIGNED AND DELIVERED VIRTUALLY THROUGH MICROSOFT TEAMS ON THIS 29TH DAY OF JULY 2026 E.N. MAINA JUDGE In the presence of: Mr. Masila for the State No appearance for Mr. Muema Advocate for the accused The accused person Miriam – Court Assistant/Interpreter https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12271/eng@2026-07-29 7

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