Republic v Ramadhan Mwinyi Mohamed

visit her husband in Likoni together with their children. On the afternoon of 5 November 2024, after taking lunch with a neighbour and washing utensils, she suddenly heard screams from members of the public shouting that a child had been electrocuted. 5. She immediately rushed outside and found her daughter trapped between iron-sheet fencing panels. One of the child's hands was lodged through a gap in the iron sheets while her forehead rested against the metallic structure. The child was unconscious and unresponsive. Members of the public hesitated to rescue her immediately because they feared the iron sheets were electrically charged. Eventually, a bystander used a piece of wood to separate the child from the iron sheets before she was rushed to Baraka Hospital and later referred to Manyatta Hospital, where doctors confirmed that she had succumbed to her injuries. 6. PW1 later viewed the deceased's body and observed burn injuries around the forehead consistent with electrocution. During cross-examination, she candidly conceded that she had not seen the accused at the scene on the material day. She further acknowledged that the incident appeared accidental in the sense that the deceased had apparently attempted to retrieve a toy that had fallen near the ironsheet fence. Nevertheless, she maintained that the tragedy resulted from the accused's failure to warn neighbours or secure what had become an extremely dangerous installation. Evidence of PW2 – Mayama Mwanzige Chanyama 7. PW2, Mayama Mwanzige Chanyama, the deceased's father, testified that he had left his family at home on the morning of 5 November 2024 before proceeding to work. At about 3.00 p.m., he received a distress call informing him that his daughter had been electrocuted. He immediately proceeded to Manyatta Hospital, where he found his wife and neighbours mourning the child's death. Upon viewing the body, he observed dark burn marks around the forehead and neck. 8. PW2 subsequently visited the scene together with police officers. He observed an iron-sheet gate erected between residential houses. According to him, there existed an illegally connected electrical wire running from the accused's security lighting system directly to the iron-sheet gate. He testified that the accused was absent from the scene immediately after the incident but later approached him, introduced himself as the owner of the premises, apologised for the occurrence and offered to assist the bereaved family. Discussions involving village elders were proposed but never materialised. 9. During cross-examination, PW2 recalled that the accused's fourteen-year-old son had informed investigators that his father routinely switched the electrical current on during the night for security purposes and switched it off each morning. On the material day, however, the current remained on until after the deceased had been electrocuted, whereupon PW5 switched it off after hearing screams from neighbours. Evidence of PW3 – Mwanapili Njeni 10. PW3, Mwanapili Njeni, testified that while returning from delivering food at approximately 2.45 p.m., she heard members of the public screaming for assistance. Upon arriving at the scene, she found the deceased lying against the iron-sheet gate, with one hand trapped through an opening in the metallic structure. Members of the public warned her not to touch the child because they believed the gate was electrically charged. PW3 returned to her nearby hotel, obtained a piece of timber and successfully separated the child from the gate before assisting in transporting her to hospital. Sadly, medical personnel later pronounced the child dead. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12644/eng@2026-07-24 2

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Evidence of PW4 – Dr Aisha Mohamed 11. PW4, Dr. Aisha Mohamed, produced the post-mortem report prepared following examination of the deceased's body on 6 November 2024. The doctor formed the opinion that the cause of death was electrical trauma resulting in asphyxia. The post-mortem findings confirmed that the deceased had suffered fatal injuries entirely consistent with electrocution. The report was produced in evidence without objection as Prosecution Exhibit 1. Evidence of PW5 – RM 12. PW5, RM, the accused's fourteen-year-old son, gave important evidence concerning the electrical installation. He testified that upon returning home from Madrasa, he found no adult at home. Shortly thereafter, he heard screams outside their residence and discovered that a child had been electrocuted near the family's iron-sheet gate. He immediately rushed inside the house and switched off the electrical switch controlling the installation before returning outside. Thereafter, members of the public rescued the child while police officers and officers from Kenya Power later disconnected the illegal electrical connection. 13. PW5's evidence further established that the electrical supply originated from inside the accused's residence and was capable of being switched on and off from within the house. This evidence became particularly significant in determining whether the accused exercised control over the dangerous installation and whether the electrical current remained energised at the material time. Evidence of PW6 – Salma Munga Ndegwa 14. PW6, Salma Munga Ndegwa, testified that she was a neighbour to the accused. On the afternoon of 5 November 2024, while inside her house together with two other neighbours, she heard screams from outside. She rushed to the scene and found the deceased lying adjacent to the accused's iron-sheet gate. One of the child's hands was trapped inside the metallic fence while the other remained outside. She confirmed that the fence was constructed entirely of iron sheets. During cross-examination, PW6 candidly admitted that she could not state whether the incident resulted from an accident or deliberate conduct. Her testimony nevertheless corroborated the evidence of the other eye witnesses regarding the location of the deceased and the circumstances under which she was found. Evidence of PW7 – PC John Nyagah 15. PW7, Police Constable John Nyagah, attached to the Crime Scene Investigations Unit, DCI Mombasa Region, testified that on 30 July 2025 he received a forwarding letter together with a flash disk containing photographs taken at the scene of crime. He processed the photographs, prepared the requisite certificate under the Evidence Act and produced both the photographic prints and the certificate as exhibits. The photographs accurately depicted the iron-sheet gate, the electrical wiring, the surrounding residential environment and the scene where the deceased met her death. The photographic evidence corroborated the oral testimony regarding the layout of the premises and the existence of the illegal electrical connection. Evidence of PW8 – PC Kevin Sao 16. PW8, Police Constable Kevin Sao, attached to the County Criminal Investigations Office, testified that he visited the scene on the evening of 5 November 2024 after receiving information that a child had been electrocuted. Upon inspection, he found that Kenya Power personnel had already disconnected https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12644/eng@2026-07-24 3

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an electrical cable which had been running directly from a security light inside the accused's premises to the metallic gate. 17. PW8 observed that the gate had been erected between two residential houses in order to close off a corridor leading into the accused's compound. He further testified that there were numerous neighbouring households surrounding the premises and that no warning signs had been erected to alert members of the public that the gate had been electrified. During investigations, the accused admitted that he had personally installed the electrical connection. PW8 considered this admission significant because it directly linked the accused to the dangerous installation that ultimately caused the child's death. Evidence of PW9 – Engineer Yabicha Chebia Oche 18. PW9, Engineer Yabicha Chebia Oche, the Chief Engineer in charge of Electrical Safety and Environment at Kenya Power and Lighting Company (KPLC), gave expert evidence regarding the electrical installation. His testimony constituted one of the central pillars of the prosecution's case. 19. The engineer testified that after receiving a report of the electrocution, he visited the scene and conducted a technical inspection. He established that the accused had illegally diverted electricity from a security lighting circuit directly onto the iron-sheet gate. According to the engineer, the gate was carrying approximately 250–255 volts of electricity, an amount capable of causing instantaneous death. He further explained that exposure to even a fraction of that voltage presents an extremely high risk of fatal electrocution. 20. PW9 explained that the installation did not comply with any electrical safety standards recognised by Kenya Power. It lacked insulation, protective devices and warning mechanisms. The current was transferred directly onto an exposed metallic surface accessible to anyone who came into contact with the gate. He described the installation as both illegal and inherently lethal. 21. The engineer further established that the electrical current was controlled by a switch located inside the accused's house. According to the information gathered during investigations, the accused habitually switched the current on during the night and switched it off in the morning. On the material day, however, the electrical supply remained energised throughout the afternoon. The engineer prepared a technical report, which was produced in evidence as Prosecution Exhibit 4. Evidence of PW10 – PC Godfrey Ngige 22. PW10, Police Constable Godfrey Ngige, then attached to DCI Likoni, testified that he was among the first investigating officers dispatched to the scene after receiving information regarding the electrocution. Upon arrival, the deceased had already been taken to hospital. Crime Scene personnel were summoned to document the scene before the officers proceeded to Coast General Hospital where the body had been taken. 23. PW10 further testified that the accused voluntarily presented himself to the police and admitted having installed the electrical connection. According to PW10, the accused explained that the installation had been intended solely to deter thieves from stealing construction materials stored within his compound. The accused further stated that he ordinarily switched the electricity on at night and off during the day, but on the material day it had inadvertently remained energised. Evidence of PW11 – Cpl Joseph Mati Sima 24. PW11, Corporal Joseph Mati Sima, the investigating officer, testified that upon taking over investigations he visited the scene, interviewed witnesses and recorded statements. He confirmed that https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12644/eng@2026-07-24 4

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the accused voluntarily reported to the police station where he explained how the electrical connection had been installed. Following completion of investigations, the accused was arrested and charged with the offence of murder. The Defence Case 25. At the close of the prosecution case, this Court found that the prosecution had established a prima facie case requiring the accused to answer. Accordingly, pursuant to Sections 306 and 307 of the Criminal Procedure Code, the accused was placed on his defence. 26. The accused elected to give sworn testimony. He stated that on the material day he was away at work when he received a telephone call from his daughter informing him that a child had been electrocuted at the gate of his residence. He immediately contacted the deceased's father and later visited the bereaved family to express his condolences and offer assistance. According to the accused, the family requested that discussions be deferred until after the burial. 27. The accused admitted, without reservation, that he personally installed the electrical connection. He explained that he was in the process of constructing a house and had accumulated building materials within his compound. Because of repeated thefts, he improvised the electrical installation to deter would-be thieves. He acknowledged before the Court that installing electricity onto the iron-sheet gate was a serious mistake. He maintained, however, that he never intended to kill or injure anyone and expressed remorse over the death of the deceased. He concluded his testimony by asking the Court and the deceased's family for forgiveness, insisting that the death was unintended and deeply regretted. Issues for Determination 28. Having carefully considered the entire body of evidence, the submissions of counsel and the applicable law, the following issues arise for determination: i. Whether the death of ACM and the cause of her death were proved beyond reasonable doubt. ii. Whether the deceased's death resulted from an unlawful act or omission attributable to the accused. iii. Whether the prosecution proved malice aforethought as defined under Section 206 of the Penal Code. iv. Depending on the answer to the third issue, whether the evidence establishes the offence of murder under Section 203 of the Penal Code or the lesser cognate offence of manslaughter under Sections 202 and 205 of the Penal Code. Part III Analysis and Determination 29. I have carefully considered the entirety of the evidence adduced by both the prosecution and the defence, the documentary exhibits produced before the Court, the submissions of learned counsel and the applicable law. The duty of this Court is neither to speculate nor to sympathise with either party but to determine whether the prosecution has discharged the constitutional burden of proving the charge beyond reasonable doubt. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12644/eng@2026-07-24 5

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30. The accused was charged with the offence of murder contrary to Section 203 as read with Section 204 of the Penal Code. Section 203 provides: “ Any person who of malice aforethought causes the death of another person by an unlawful act or omission is guilty of murder." 31. The offence therefore comprises four essential ingredients, namely: a. proof of the death of the deceased; b. proof of the cause of death; c. proof that the death resulted from an unlawful act or omission attributable to the accused; and d. proof that the accused acted with malice aforethought as defined under Section 206 of the Penal Code. These ingredients must all be established beyond reasonable doubt. 32. The principle governing the burden and standard of proof remains the celebrated decision in Woolmington v Director of Public Prosecutions [1935] AC 462, where the House of Lords affirmed that throughout a criminal trial the burden of proving the guilt of an accused person rests upon the prosecution and never shifts except in limited statutory exceptions. 33. That principle has consistently been applied in Kenya and is reinforced by Article 50(2)(a) of the Constitution which guarantees every accused person the right to be presumed innocent until the contrary is proved. 34. In Joseph Kimani Njau v Republic [2014] eKLR, the Court of Appeal reiterated that both the actus reus and the mens rea of the offence charged must each be proved beyond reasonable doubt before a conviction can properly follow. 35. Likewise, in Anthony Ndegwa Ngari v Republic [2014] eKLR, the Court of Appeal stated that for a conviction for murder, the prosecution must establish: i. the death of the deceased and its cause; ii. that the accused committed the unlawful act which caused the death; and iii. that the accused acted with malice aforethought. I respectfully adopt those principles. Whether the death and cause of death were proved 36. There is absolutely no dispute regarding the death of ACM. The evidence of PW1 and PW2, the child's parents, established that the deceased was taken to hospital after being electrocuted but was pronounced dead shortly thereafter. Their testimony remained consistent throughout crossexamination and was corroborated by the medical evidence. 37. The medical evidence was supplied by PW4, Dr Aisha Mohamed, who performed the post-mortem examination. The doctor concluded that death resulted from electrical trauma causing asphyxia. The post-mortem report was produced without objection as Exhibit P1. 38. The medical findings were independently corroborated by PW9, the Chief Electrical Engineer from Kenya Power and Lighting Company. His expert testimony established that the iron-sheet gate had been energized with approximately 250–255 volts of electricity. According to him, exposure to such https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12644/eng@2026-07-24 6

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voltage is capable of causing instantaneous death. He further explained that only a small fraction of that voltage is sufficient to prove fatal to a human being. 39. The evidence of the pathologist and that of the electrical engineer complement each other. Whereas the medical evidence established the physiological cause of death, the engineering evidence explained the lethal mechanism that produced those injuries. 40. Consequently, I find that the prosecution has proved beyond reasonable doubt both the fact of death and its cause. Whether the death resulted from an unlawful act attributable to the accused 41. The second issue concerns whether the deceased's death resulted from an unlawful act or omission and whether that unlawful act can properly be attributed to the accused. 42. The law presumes every homicide to be unlawful unless justified or excused by law. This principle was stated in Sharm Pal Singh v Republic [1962] EA 13 and reaffirmed in Guzambizi Wesonga v Republic (1948) 15 EACA 63, where the Court held that every homicide is presumed unlawful unless committed in circumstances recognised by law such as self-defence or other lawful justification. 43. There is no suggestion whatsoever in the present case that the death resulted from lawful use of force or any statutory justification. 44. The evidence instead demonstrates that the accused deliberately installed an electrical connection from the security lighting circuit inside his house directly onto an exposed iron-sheet gate accessible to members of the public. This fact was established by several independent witnesses. 45. PW8 testified that the accused admitted personally making the electrical connection. 46. PW9, the Kenya Power engineer, confirmed after technical inspection that the installation was illegal, unsafe and contrary to accepted electrical standards. The current was transmitted directly onto an exposed metallic gate without insulation, protective devices or warning notices. 47. PW10 testified that during investigations the accused again admitted installing the connection as a deterrent against thieves stealing construction materials. 48. Most importantly, the accused himself, while under oath, freely admitted making the illegal electrical installation. His explanation was that he intended to secure construction materials from theft. He accepted that his conduct amounted to a serious mistake. 49. The defence therefore does not dispute authorship of the installation. The only issue concerns the legal consequences flowing from that admitted conduct. 50. The evidence further establishes that the electrical current remained switched on during daylight hours when members of the public, including children, ordinarily used the pathway adjacent to the gate. 51. PW5 testified that after hearing screams he immediately ran inside the house and switched off the electrical switch. That evidence demonstrates beyond doubt that the dangerous installation remained energized at the time the deceased came into contact with the gate. 52. Equally significant is the evidence that no warning notices had been erected and no physical barriers prevented members of the public from coming into contact with the energized metallic surface. 53. The accused therefore created a concealed lethal hazard within a residential neighbourhood where young children could reasonably be expected to pass or play. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12644/eng@2026-07-24 7

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54. A reasonable person would undoubtedly foresee that transmitting high-voltage electricity onto an exposed iron-sheet gate accessible to members of the public created an obvious and substantial risk of death or grievous bodily harm. 55. This Court therefore finds that the accused's unlawful electrical installation directly caused the electrocution and consequent death of the deceased. 56. The prosecution has accordingly proved beyond reasonable doubt that the accused committed the unlawful act which caused the death of ACM. Part IV Whether the Prosecution proved Malice Aforethought 57. The final and determinative issue is whether the prosecution proved beyond reasonable doubt that the accused acted with malice aforethought as required under Section 206 of the Penal Code. Although the prosecution has established that the accused unlawfully caused the death of the deceased, a conviction for murder cannot stand unless the mental element prescribed by law has equally been proved. 58. Section 206 of the Penal Code provides that malice aforethought shall be deemed to be established where there is evidence proving any one or more of the following circumstances: a. an intention to cause the death of or grievous harm to any person; b. knowledge that the act or omission causing death will probably cause death or grievous harm, whether or not the accused desires that consequence; c. an intent to commit a felony; or d. an intention to facilitate the escape of a person who has committed a felony. 59. The burden of proving malice aforethought rests entirely upon the prosecution and remains distinct from proving the unlawful act itself. It is therefore insufficient merely to demonstrate that the accused committed a dangerous or unlawful act which resulted in death. The prosecution must go further and establish the particular state of mind required under Section 206. 60. In Rex v Tubere s/o Ochen (1945) 12 EACA 63, the former Court of Appeal for Eastern Africa held that in determining whether malice aforethought exists, a court must consider all the surrounding circumstances including:the nature of the weapon used;the manner in which it was used;the part of the body targeted; andthe conduct of the accused before, during and after the incident. Those factors remain the accepted guide in determining whether the requisite intention existed. 61. The Court of Appeal in Nzuki v Republic [1993] KLR 171 further emphasized that malice aforethought cannot be presumed merely because death has occurred. Criminal intention must be proved from the evidence, and where the evidence leaves reasonable doubt regarding intention, a conviction for murder cannot stand. 62. Similarly, in Roba Galma Wario v Republic [2015] eKLR, the Supreme Court reiterated that every unlawful killing does not amount to murder. Courts must carefully distinguish between intentional homicide and deaths resulting from recklessness, negligence or unlawful acts which, though criminal, fall short of establishing malice aforethought. 63. These authorities underscore an important principle of criminal law: while every murder is an unlawful homicide, not every unlawful homicide constitutes murder. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12644/eng@2026-07-24 8

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Application of the Law to the Evidence 64. Applying the foregoing principles to the evidence before this Court, several matters emerge quite clearly. 65. First, there is no evidence that the accused bore any grudge, ill-will or prior disagreement with either the deceased or her family. Indeed, the evidence of PW1 and PW2 was unequivocal that they did not know the accused before the tragic incident. Nothing in the evidence suggests any motive directed specifically towards the deceased. 66. Secondly, the accused consistently admitted that the illegal electrical installation had been improvised to deter thieves from stealing construction materials stored within his compound. This explanation was not only contained in his sworn defence but was also independently confirmed by PW10, who testified that the accused made the same admission immediately after presenting himself to the police. 67. Thirdly, the prosecution's own witnesses established that the electrical current was ordinarily switched on at night and switched off in the morning. PW5, the accused's son, testified that on the material day the family forgot to switch it off after sunrise. That evidence remained substantially unchallenged. 68. The Court accepts that explanation not as an excuse but as evidence relevant to the accused's state of mind. It demonstrates that the accused did not intentionally energise the gate during the daytime in anticipation of harming any member of the public. Rather, the dangerous situation arose because the illegal installation remained activated when it ought to have been switched off. 69. Fourthly, immediately after the incident the accused voluntarily presented himself to police officers, admitted making the connection, approached the deceased's family, apologised and expressed willingness to assist them. Such conduct is inconsistent with an intention to kill although it does not exonerate him from criminal liability. 70. This Court nevertheless cannot overlook the extremely dangerous nature of the accused's conduct. PW9's expert testimony established that the gate carried approximately 250 volts of electricity, a current many times above the threshold capable of causing death. The installation was illegal, lacked insulation, lacked warning signs and was situated in a residential neighbourhood frequented by children. Any reasonable person would have foreseen that exposing members of the public to such danger created an obvious and unacceptable risk of fatal injury. 71. The accused's conduct therefore amounted to gross criminal negligence. It reflected a reckless disregard for human life and public safety. However, recklessness and gross negligence, serious though they are, do not automatically establish the specific intention required for murder under Section 206 of the Penal Code. 72. The Court is therefore unable to conclude beyond reasonable doubt that the accused intended to kill, intended to cause grievous harm, or possessed the degree of knowledge contemplated under Section 206. The evidence leaves reasonable doubt on the existence of malice aforethought, and that doubt must be resolved in favour of the accused. Whether the Lesser Offence of Manslaughter has been Proved 73. Although the prosecution has failed to establish murder, the evidence overwhelmingly proves that the accused unlawfully caused the death of the deceased through an act of gross criminal negligence. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12644/eng@2026-07-24 9

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74. Section 202(1) of the Penal Code provides: “ Any person who by an unlawful act or omission causes the death of another person is guilty of the felony termed manslaughter." 75. Unlike murder, manslaughter does not require proof of malice aforethought. The offence is complete once the prosecution proves that the accused committed an unlawful act or omission which caused death. 76. The evidence in this case satisfies each of those ingredients. 77. The accused personally installed the illegal electrical connection. 78. He energized an exposed iron-sheet gate carrying lethal voltage. 79. The installation was accessible to members of the public without warning. 80. The deceased came into contact with the energized gate and died from electrical trauma. 81. The causal connection between the accused's unlawful conduct and the death of the deceased was direct, immediate and overwhelming. 82. Under Section 179(2) of the Criminal Procedure Code, where an accused is charged with a major offence but the evidence proves a cognate minor offence, the Court is empowered to convict for the lesser offence without the necessity of amending the charge. 83. This is an appropriate case for the invocation of that statutory power. Disposition 84. Upon a comprehensive evaluation of all the evidence, this Court reaches the following conclusions: a. The prosecution has proved beyond reasonable doubt that ACM died from electrical trauma. b. The prosecution has proved beyond reasonable doubt that her death resulted directly from an unlawful electrical installation personally created by the accused. c. The prosecution has not proved beyond reasonable doubt that the accused acted with malice aforethought within the meaning of Section 206 of the Penal Code. d. The prosecution has nevertheless proved beyond reasonable doubt the lesser cognate offence of manslaughter contrary to Sections 202 and 205 of the Penal Code. 85. Accordingly, pursuant to Section 179(2) of the Criminal Procedure Code, I substitute the charge of murder with the lesser offence of manslaughter. 86. The accused, Ramadhan Mwinyi Mohamed, is hereby found not guilty of the offence of murder contrary to Section 203 as read with Section 204 of the Penal Code. 87. He is instead found guilty and is convicted of the offence of manslaughter contrary to Section 202 as read with Section 205 of the Penal Code. 88. The matter shall now proceed to mitigation and sentence. It is so ordered. DATED, SIGNED AND DELIVERED AT MOMBASA THIS …24TH …… DAY OF JULY…2026. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12644/eng@2026-07-24 10

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WENDY KAGENDO MICHENI JUDGE IN THE PRESENCE OF MS MAIGA FOR THE ACCUSED PERSON MR SIRIMA FOR THE STATE MS BEBORA COURT ASSISTANT https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12644/eng@2026-07-24 11

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