Republic v Muthengi (Sexual Offence E244 of 2024) [2025] KEMC 371 (KLR)

covered her head with both hands and that is when she received more cuts on her right lower elbow, upper part of the right hand and the middle finger of her right hand which she said was now completely paralyzed. That was not all, the mad frenzy according to her occasioned her more cut injuries on the left thumb, right knee, the back of her head and front part of her head. To put the injuries into perspective she held out her hands in court and showed the injuries as well as on her head that were clearly visible. 4. When the ordeal was ongoing she fell down and the accused’s son and wife rushed to her rescue while shouting for him to stop. He left angrily saying that he was going to look for the complainant’s husband and that he will kill him too. The complainant was rushed to Masii Health Centre by her uncle where first aid was administered. She recalls losing consciousness due to excessive bleeding and woke up at Machakos Level 5 hospital the next morning. She was rushed to the theatre due to the severity of the cut injuries on her leg and she was admitted for 3 weeks. Although she was later discharged she was to undergo regular physiotherapy to help her recover. 5. When the accused was placed on his defence he stated that he lives in Vyulia location. He was firm that the genesis of this case emanates from a day in July, 2024 when an old man was being beaten by his brother Musee Muthengi at his the brother’s home. The accused stopped the fight and that is when he realized that his brother and the old man were fighting over a cow the old man said had been stolen. The old man went to report at Masii police station and police officers came and found his sister in law and arrested her. When the police saw him they asked who he was and when he answered that he was the brother in law they told him that he should accompany them which he did. 6. He called his brother and informed him of the issue. When the complainant left the police station the next day they passed by his Page 2 of 8 E244/24

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home and informed the accused that he will move out of that land whether he likes it or not. They would engage in acts of nuisance like constantly banging his door just to irk him. That on the material date, he had come from work and from a distance he could see a crowd at his house. His son rushed up to him informing him that people were destroying their house. That the people were 3 men and among them was the complainant. He could see that the people had lit a fire. 7. He rushed to Vyulia Police Station at about 1830hrs and made a report. He could not get immediate assistance and was asked to come back the following day. When he went home he found the complainant, Mutua Mumo and Mutova Mumo who are his brothers. They had chased away his wife and son. He got into a heated argument with them but left to go and look for his wife and son. He searched for them and only found them at about 0530HRS the next morning. He asked them to accompany him to Vyulia Police Station to make a report of the damage to his properties. The officer at the reporting desk called the OCS Masii Police Station who requested that they go to Masii Police Station. 8. At Masii police station they made a report and officers took photographs of the scene of crime which he produced as evidence. While at the station he was also accused of injuring PW 1. That even the doctor who testified on behalf of the prosecution was in cahoots with his brother to finish him. That the sole objective of the complainant and his family is to get him off the property and that even if he is released he will not know how to start life a fresh. He called his sister, MARY NDUKU MUTHENGI as his witness who basically said that the accused was a child of a previous relationship when their mother was married into that home. Yet he was entrusted with all the documents pertaining to the land in issue ad that is why his documents were burnt. Page 3 of 8 E244/24

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C. POINTS FOR DETERMINATION: 9. In determining cases of attempted murder, section 220 of the Penal Code is instructive. It provides as follows: “Any person who — (a) attempts unlawfully to cause the death of another; or (b) with intent unlawfully to cause the death of another does any act, or omits to do any act which it is his duty to do, such act or omission being of such a nature as to be likely to endanger human life, is guilty of a felony and is liable to imprisonment for life.” 10. Further, the Court of Appeal in the case of NDAA v REPUBLIC [1985] eKLR held that the ingredients for the offence of assault causing actual bodily harm are; assaulting the complainant or victim and occasioning actual bodily harm. In view of the foregoing, the points that fall for determination are: i. Whether the accused had the intent to unlawfully cause the death of the complainant? ii. Whether the accused committed an act of such nature as to likely endanger human life? and iii. Whether the accused occasioned grievous harm to the complainant? D. ANALYSIS i. WHETHER THE ACCUSED HAD THE INTENT TO UNLAWFULLY CAUSE THE DEATH OF THE COMPLAINANT? 11. The onus of proving criminal cases always rests with the prosecution and does not shift to the accused at any one given time. It is the law in Kenya as entrenched in the Constitution under Article 50 (2) (a) that an accused person is presumed to be innocent until the contrary is proved. The evidence Act Cap 80 of the Laws of Kenya at section 107 (1) provides thus: “whoever desires any court to give judgement as to any right or liability dependent on the existence of facts which he asserts, must prove those facts exist.” Page 4 of 8 E244/24

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12. As to what constitutes the burden of proof beyond reasonable doubt, the case of Miller v Minister of Pensions [1947] 2 ALL ER 372 – 373 by Lord Denning provides as follows: “That degree is well settled. It needs not reach certainly, but it must carry a high degree of probability. Proof beyond a reasonable doubt does not mean proof beyond the shadow of doubt. The law would prevail to protect the community if it admitted fanciful possibilities to deflect the course of justice. If the evidence is so strong against a man as to leave only a remote possibility of his favour which can be dismissed with the sentence of course it is doubt but nothing short of that will suffice.” 13. Justice W. M. Musyoka in the case of Republic v Ominya (Criminal Appeal E020 of 2020) [2024] KEHC 12533 (KLR) explained mens rea in cases of attempted murder as follows: “The mens rea required for attempted murder is a positive intention to kill. See Rex vs. Gwempazi s/o Mukonzho [1943] 10 EACA 101 (Sir Joseph Sheridan CJ, Gray CJ & Manning J), Hamisi s/o Tambi [1953] 20 EACA 176 (Sir Barclay Nihill P, Sir Newnham Worley VP & Sir Hector Hearne CJ) and Cheruiyot vs. Republic [1976-1985] EA 47 (Madan, Miller & Potter, JJA). That intention can be expressed verbally or in writing, or it can manifest itself in an overt act. The intention to kill is usually inferred from the evidence tendered in support of the charge.” 14. PW 3, AGNETA MUENI MUNYAO in her testimony stated that came into their house and told her that he is going to cut up the complainant. Her efforts to dissuade him from causing her harm fell on deaf ears. He immediately went out and actualized his threat. The accused never cross-examined her on this assertion and the court finds that the accused had the intent to go and cause harm to the complainant by cutting her up and manifested this intent in the words he told his wife. B. WHETHER THE ACCUSED COMMITTED AN ACT OF SUCH NATURE AS TO LIKELY ENDANGER HUMAN LIFE? Page 5 of 8 E244/24

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15. The record is clear as to the injuries the complainant suffered on August 08, 2024. She also showed the court scars of cuts on her hands, elbow, head, and a finger that seemed to hardly move. In her testimony she is certain that it is the accused who cut her with a panga severally until she fell to the ground. That she lost so much blood and was first given first aid at Masii Health Centre before being admitted at Machakos Level 5 hospital. In attestaton to the injuries a P3 form filled by Dr. Nthanga was produced as P. Exh.5 showing that the complainant had received injuries from a machete where she suffered cut wounds on the right forearm (2 cut wounds), linear cut wound on right tiny finger, sutured cut wound on right palm, cut wound on the left thumb and a cut wound on the right leg below the knee. She also had a sutured wound on the scalp. This was consistent with the testimony of the complainant. The doctor classified the injury as grievous harm. 16. The medical report by Dr. Nthanga produced as P. Exh. 2 also indicated that she had difficulties in flexing her right thumb and the prognosis was that she will remain with a permanent disability of the right thumb. BRIAN MUTHENGI MUSEE (PW 2) witnessed his mother being assaulted by the accused and when he rushed to help, he was attacked by the accused with the said panga. He suffered main as per his P3 form produced as P. Exh. 5 where it was indicated he suffered a cut of the scalp on the left part of his head. That the accused was swinging a panga in every direction when attacking the complainant. 17. PW 3, AGNETA MUENI said when she saw her husband had cut the complainant severally, she took off with her son for fear of retaliation and they slept in a bush that night. That in the morning they went to Vyulia Police Station and found the accused who had surrendered himself and even admitted to the charges. Lastly, PW 4, PC CAROLINE KILONZO stated that the wife to the accused reported to them at Vyulia that the accused had cut up his brother’s wife. In view of the foregoing, I find that the accused indeed committed grave acts Page 6 of 8 E244/24

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that were designed to permanently endanger the life of the complainant. 18. His defence fails to displace the prosecution evidence as to exactly what happened. It was also twisted to fit a narrative countering the prosecution’s testimony. The Defence witness never did much to help his case other than to mitigate as to why the offence may have occurred which is immaterial at this point. 19. The prosecution’s case succeeds on the count of attempted murder as against the accused in count 1. C. WHETHER THE ACCUSED CAUSED GRIVOUS HARM TO THE COMPLAINANT? 20. Having made the findings in limb (b) above that the accused indeed occasioned serious injuries to the complainant, consequently, the second charge against the accused hereby succeeds as well. 21. Prior to concluding this judgement, it is clear that had the families sat down to resolve the issue of the land dispute that is at the centre of this case, this offence would not have occurred. It is unfortunate that some people resort to violence in solving land cases that breeds a cycle of unending violence in Mwala Sub-County. Violence always begets violence. Had the accused taken time to reflect on his anger and listen to his wife before acting rashly, he would be a free man today and his family intact. The impact of his actions have not only torn apart his nuclear family but also his extended family as well. CONCLUSION: Accordingly, and by dint of section 215 of the Criminal Procedure Code, Cap 75 of the laws of Kenya the accused is hereby convicted first, of the offence of attempted murder of EVERLYNE MUENI MULI contrary to Section 220 Page 7 of 8 E244/24

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of the Penal Code Cap 63 of the Laws of Kenya. Secondly, he is also convicted of the offence in count II of grievous harm contrary to Section 234 of the Penal Code against EVERLYNE MUENI MULI. Dated this 8 TH day of SEPTEMBER, 2025 Law Courts. HON. P. E. NABWANA SENIOR RESIDENT MAGISTRATE IN THE PRESENCE OF: Prosecution Counsel: Accused: Present Court Assistant: Nicholas K. Page 8 of 8 E244/24 at Wamunyu

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