Republic v Kangela [2025] KEHC 4045 (KLR)

Republic v Kangela (Criminal Case E007 of 2021) [2025] KEHC 4045 (KLR) (27 March 2025) (Judgment)

Neutral citation: [2025] KEHC 4045 (KLR)

Republic of Kenya

In the High Court at Machakos

Criminal Case E007 of 2021

FR Olel, J

March 27, 2025

Between

Republic

Prosecutor

and

Richard Musyoki Kangela

Accused

Judgment

A. Introduction 1. The accused person herein was charged with the offence of Murder Contrary to Section 203 as read with Section 204 of the Penal Code (Chapter 63 of the Law of Kenya). The particulars of the offence were that on the 30th day of January, 2021 at Utumoni village, Katitu sub-location, Kivaani location in Kangundo Sub-County within Machakos County, jointly with others not before court murdered Peter Mbithi Muasa.

2. The prosecution called a total of eleven (11) witnesses in support of the case against the accused person before closing its case on 12. 07. 2022. The accused person was placed on his defence and opted to give sworn evidence and called one witness to support his case.

B. Facts at Trial 3. PW1 Benard Muasa Mbithi testified that he was a farmer and resided at Kivaani Katilu location within Kangundo Sub-County. He was the deceased’s father and they resided with him within the same house, but each of them had their own room.

4. On 29. 01. 2021 at about 5. 00 pm he left his home to go visit his sick daughter and while enroute, met the deceased going home from casual work. The deceased was in the company of his friends and was chewing ‘miraa’. He sent one of them to tell him that he did not have sugar. The deceased gave him Kshs 30/= after which he left for his home as it was getting dark.

5. At home he had supper with his wife and went to bed before the deceased came back. The following morning, he heard his wife complaining that the deceased had not eaten his food nor had he returned back home from his escapades. Later in the day, he was informed that the deceased was seen drunk and was sleeping next to a shop at Kilindini, but before he could verify the said information, word reached him that his son had passed on.

6. Accompanied by other neighbours, they went to the scene and found the deceased lying sideways and his trousers full of faeces. The Assistant Chief and the police came, processed the scene, and then took the deceased body for preservation at Kangundo Mortuary. Later before the post-mortem was done, he was summoned by the police to identify his son's body, and after the post-mortem was informed by the Pathologist that his son had been strangled.

7. Under cross-examination, PW1 confirmed that the deceased was his last-born child and last saw him on 29. 01. 2021. He was not aware of the circumstances that led to his death, though was told from the grapevine that he had been involved in a fight at the local bar. Further, the deceased body had been recovered at Kilindini shopping center, within someone’s compound but to his knowledge the deceased was not a thief and he did not know how the deceased body ended up at the said spot.

8. PW2, Dickson Mbithi Kivai testified that he was a businessman running a bar and restaurant called Caribbean Bar and Restaurant at Kikomba Market-Kangundo. He started the said business in September 2020 and had rooms, a butchery, and a club. He had also deployed CCTV cameras for security purposes.

9. On 29. 01. 2021 he was in the club the whole day and after curfew hours, he requested his clients to leave so that they could close up for the day. His staff member, one Boniface Mutua opened for the said clients the door and after they left proceeded to close the door of the said premises.

10. After a short while they heard commotion outside his bar and he asked Boniface to go check what was happening. Boniface stayed outside for long and he too went outside only to find some clients quarreling and kept pushing Boniface away when he tried to intervene to stop the said fight. He then proceeded to lock his premises and went home. The following morning, he was informed that one young man, who was amongst the four who were fighting the previous night had passed on. He knew the four as they had been his clients inside the club and also described what they had worn on the material day.

11. Upon receiving this information, PW2 stated that he proceeded to the scene and found the deceased body inside someone's compound by the gate and recognized him as one of his customers who had been at the club the previous night. The deceased putting on a red T-shirt. His body was lying face downwards and his trousers had faeces, though he did not notice any injury to the body.

12. He informed the Area Chief and the police that the deceased was at his club on the previous night and he gave the police expert access to the CCTV footage for the whole day. A review of the CCTV video did reveal that the deceased and his friends were quarreling and there was ample light from the security light to clearly identify them. From the said footage he clearly identified the deceased as his client and he was wearing the red hoodie jacket

13. Under cross-examination, PW2 confirmed that he was the proprietor of Caribbean Restaurant and further affirmed that on the material day, after curfew hours, they still had about seven (7) clients locked within the bar. He knew two of his clients but had not known the deceased before the material day. On the said night, the accused was wearing a red T-shirt and he reaffirmed that he saw the deceased being assaulted, and also clarified that the red hoodie was found on the road near where the deceased body was found.

14. Further, the footage of the CCTV did reveal that it was the accused who was assaulting the deceased, and though it was black and white, one could clearly see the parties' physical appearance as captured in the said CCTV Video.

15. On re-examination, PW2 clarified that the deceased wore a red T-shirt and jacket, while the accused who was assaulting him had a red T-shirt and white Cap. The deceased had left the bar accompanied by the accused and other friends and he reiterated that the CCTV video captured the deceased being assaulted by the accused person.

16. PW3 Boniface Mutua testified that he was the counter attendant at Caribbean Bar and Restaurant, and on the 29. 01. 2021 reported to work at 7. 00 am and worked until 9. 00 pm. While at the club on the material evening, a scuffle ensued between some revelers who were drunk and eventually, they asked the group to leave and closed for the day.

17. After a while he heard noise outside and went to check what was happening. He found two people from the group fighting and were slapping each other. He asked them to disperse and on the following day was informed that one of his customers who was at the club known as “Mbithi” had died. He was the one being assaulted by the accused person. He further confirmed that he knew both of them as they were regular patrons at the club and would come to the said club together.

18. Under cross-examination PW3 confirmed that they had closed the pub by around 9. 00 pm, but not all clients had left as the last clients left at about 11. 00 pm, which was when the fight outside the club occurred. He reaffirmed that he did not witness the fight start, but went outside due to the noise and saw the two engage in a fight. He did not know the genesis of the said fight, nor was he sure of who wore the red jacket but was certain that it was the accused who was assaulting the deceased. He also did not know what cause of death of the deceased.

19. PW4 Benson Mutua Mutinda testified that he does small casual business and that on 29. 01. 2021 in the evening, was at Caribbean Bar drinking “Keg bear” with his friend Dennis Kioko, Richard Kangela Musyoki, Charles Kioko, Muthama Kaloki, Polycarp Nguta, Stephen Maingi, and Muli Ngutu. He confirmed that the deceased found him at the club and went to sit with Stephen. Later during the night he left the club accompanied by Denis Kioko and left the accused at the club

20. The following day his father David Mutinda woke him up and told him that the deceased had been killed. He rushed to the scene and saw his body lying down and he was still putting on a red jacket at the time. He recalled that on the material evening, the accused wore a red T-shirt, which he identified (MFI P3). During the investigation, he was arrested and eventually released after spending one month in custody. He also confirmed that he and the accused were childhood friends and they did not harbor any grudge against each other.

21. Under cross-examination PW4 testified that on the material evening, they were about 40 people at the bar and he did not know all the customers. During the said evening, a disagreement arose between Richard and Kioko but they did not physically fight. He reaffirmed that the deceased had put on a red jacket on the fateful evening, while the accused had a red T-shirt. He also did not know who murdered the deceased.

22. PW5 Charles Kioko Mutua testified that he is employed as a domestic worker and that on 29. 01. 2021 he was a Kikomba in a club drinking spirits together with the accused, bob, Bama and the deceased. He was at the club until about 11. 00pm when he decided to go home. During the evening, his friends kept exchanging words but they did not physically fight and while awaiting his balance, the rest of the group was asked to leave the club by the management.

23. On the following day he was informed that the deceased had been killed and went to the scene to confirm the same. Later he was summoned by the police to record his statement. Under cross-examination, PW4 repeated facts as stated in his evidence in chief and confirmed that he saw Polycarp, Bama, Muthama, and the accused assault the deceased outside the bar, but he did not know who murdered the deceased.

24. PW6 Stephen Nzau Maingi testified that on 29. 01. 2021 at about 7. 00 pm he was at Kikomba Market at a club, drinking alcohol, and there were about 20-30 people therein. The deceased came to the club at about 8. 00 pm and sat on the opposite side with many other people most of whom he could not identify. He later noticed that the deceased had left the club before him.

25. Later, while enroute home, he bumped into the deceased, the accused, and Polycarp near a certain stream, which had a wooden bridge made of planks and water flowed thereunder. The deceased and Musyoki (the accused) were inside the water and upon inquiry, the accused had told him that the deceased had fallen off the bridge and he was assisting him to get out. He too jumped into the water and assisted the accused in hauling the deceased off the water. He confirmed that the moon was up and bright and he was able to see all the parties. After the assist, he left the three persons behind and went home.

26. The next day he got information that the deceased had died and his body had been found somewhere along the road. He went and viewed the body and was later called to Kangundo Police to record his statement.

27. Under cross-examination he confirmed that he never saw any fight take place within the bar and that by the time he left the said bar, he was drunk. At Zipporah bridge he found the accused, the deceased, and Polycarp and it was the accused who told him that the deceased had fallen off the bridge and that he was trying to assist him.

28. He too entered into the stream and helped the accused remove the deceased therefrom. He affirmed that he never saw the accused beat up the deceased during this process as the deceased was walking and alive at that particular point. They thereafter left the bridge and saw the deceased and his friends walking towards their home. The following day, the deceased body was found about 800m from the said bridge.

29. On re-examination he stated that he was still drunk at that point but not too much and he had left Muli, Polycarp, Musyoki, Muthama, and Mwendwa still standing next to the kiosk which was near the stream and had not gone home by then.

30. PW7, Dr. Katua Daniel testified that he was a qualified Pathologist and had 11 years of experience. He conducted the post-mortem examination on the deceased’s body on 05. 02. 2021 at Kangundo Level 4 Hospital and the body was identified by Bernard Mbithi and Peter Mwanzia. The deceased had injuries on the head, neck, private parts, and bloodstained stool on his pants. Further, the deceased suffered a deep right tibia cut wound about 3 cm long.

31. The nostrils were oozing water fluid and there was fresh peeling of the skin on the posterior trunk and multiple bruises on the anterior-posterior, bilateral cervical region, and upper chest. The chest also had pleural effusion of about half litre (500 Milliliters) and he also noted injuries on the front and back of the neck and also on the deceased shoulder. He formed an opinion that the cause of death was due to suffocation from strangulation. PW7 produced his report as Exhibit P1.

32. Under cross-examination PW7 confirmed that he was deployed at Kathiani Level 4 Hospital but undertook the post-mortem at Kangundo Level 4 Hospital and that explained why the post-mortem report was stamped using the stamp from Kathiani Level 4 Hospital. As per the information received the deceased died on 30. 01. 2021 and he performed the post-mortem on 05. 02. 2021.

33. He further confirmed that he did not know who had murdered the deceased but it was obvious that he had been strangulated using blunt force. The deceased also suffered a deep cut wound on the right anterior tibia, which had also been caused by blunt force but the said injury could not have caused his death.

34. He also did not establish if the deceased was drunk since alcohol stays in the body for 48 hours but he had examined the body after six days. Lastly, he also confirmed that he did not remove any samples for DNA profiling.

35. PW8 Samson Muli Nguta testified that on 29. 01. 2021 at around midnight, he was at Caribbean Bar drinking, and when they were told it was time to leave, he left the said bar accompanied by Kasee, Tule, and Bama. On his way, home they reached a stream and found the accused and the deceased fighting inside the stream. Kasee separated them and when he asked the accused why they were fighting the accused turned on him and punched him too.

36. Everybody went their own way and the following morning he got the sad news concerning the deceased. Lastly, he reaffirmed that the accused was the one fighting with the deceased and that he had known him for years and had not quarreled with him.

37. Under cross-examination, PW8 confirmed that he had taken alcohol but was not drunk. Both the accused and the deceased were at the bar and he saw they leave the said bar while drunk. He also could not remember the clothes the accused was wearing but confirmed that the deceased had a red attire. He again reaffirmed that they were enroute home, when he found the accused beating up the deceased inside the stream. They were separated and after the fight, everybody went their separate ways.

38. PW 9, Peter Mwanza Nzioka testified that the deceased was his nephew. On 05. 02. 2021 he accompanied the deceased father to witness the post-mortem at Kangundo Level Four Hospital, where they identified the body before the post-mortem examination proceeded. After the said process, the doctor informed them that the deceased had been strangled. Under cross-examination, he confirmed that he did not know who killed the deceased.

39. PW 10 Beatrice Mumbua Mutua testified that the deceased was her neighbour and that on 30. 01. 2021, she woke up at 5. 00 am to prepare her children for school. They left through the pathway at about 5. 30 am and after dropping them off at school, she proceeded to work at the hotel until 9:00 am, when she decided to return home to take care of her cows.

40. When she arrived at her home, she was surprised to see many people outside the gate and was informed that someone had been killed inside her compound. She viewed the body and recognized it as that of his neighbour “Mbithi”. He had injuries on his head and private parts. Blood was oozing from the said injuries. She then called her parents-in-law, who in turn informed the assistant chief who later came to the scene accompanied by police officers.

41. The deceased body was then moved to Kangundo Hospital Mortuary for purposes of post-mortem examinations. Later, she heard from the grape vines that the deceased had a fight with another man at the market and both were drunk. She further confirmed that there was no blood at the scene where the deceased body was dumped.

42. The deceased clothes too were wet but it had not rained neither was their home next to a water point. Finally, she also saw excretion on his body and clothes as his trouser was slightly lowered but did not know who the deceased fought with.

43. Under cross-examination she testified that on 30. 01. 2021 she returned home and found neighbors within her compound. She recognized the deceased body, when she viewed it, but could not tell when the body was dumped within her compound. She also could also not confirm if the deceased had wanted to steal from her home as they did not hear any strange movements within her compound that night.

44. She added that she did not know what caused the deceased’s death, and reiterated that she did not witness any fight but just heard people talking as to what may have transpired the previous night. On re-examination, PW10 confirmed that the deceased clothes were wet.

45. PW11, No. 93293 PC. Ngao Nyae Tsuma testified that he works at the Machakos Scene of Crime Department and was earlier based at Kangundo Police Station working as a DCI Officer. On 30. 01. 2021 he received a report from Kivaani Police Post that a body had been recovered at PW’s 10 home. They went to the scene and confirmed the same. The deceased person was identified as Peter Mbithi.

46. The body had injuries on the head, neck, chest, and bruises on the back. The body also had wet clothes with faeces excretion. The deceased wet red hood jumper was also found about 500 meters away from where the body was discovered. They gathered that on the previous day, the deceased was in the company of his friends, and they were drinking at Caribbean bar when a disagreement arose.

47. They visited the bar and found that it had CCTV camera’s which were examined and they confirmed that there had been a disagreement between the deceased, Richard Kangela, Polycarp, and Bama. In the cause of the disagreement, the bar owners had removed them outside and they were still quarreling as they proceeded towards Zipporah’s home.

48. Along the said road, a fight ensued near a stream, which had some stagnant water. Certain witnesses saw the accused assault the deceased and push him into the said water. The accused and the deceased were eventually separated and went away. The following morning, the deceased body was found within Mumbua’s homestead. PW11 produced the red hooded jacket and red T-shirt as Exhibits and confirmed that as per the CCTV Video footage, the accused was wearing the red hooded jacket, while the accused was wearing the red shirt.

49. They conducted further investigations and based on the witness statement gathered and a review of the CCTV footage, they concluded that the accused was involved in the scuffle with the deceased and proceeded to arrest him and his two, friends, Benson and Charles. Further investigation exonerated the two friends as Benson had left his friends at the bar, and Charles had also left the two in the company of Polycarp, Richard, and Bama, as they were going in the same direction. The accused later assaulted the deceased at the stream in the presence of his friends

50. Finally, it was his evidence that the two who were involved in a fight were from the same village and had a simmering disagreement. The post-mortem had also revealed that the deceased was strangled and since it was the accused who was seen fighting the deceased, they recommended that he be charged with the offence of Murder.

51. Under cross-examination, PW11 confirmed that on 30. 01. 2021 at about 10 am they received a report that the deceased body had been recovered, but the first incident report did not indicate who had killed the deceased. It was his hypothesis that the person who placed the deceased body within the said compound could have entered through the gate as it was not locked. He observed that the deceased had suffered injuries to his head, neck, chest, and his private part.

52. A review of the CCTV footage retrieved by the cybercrime DCI officers had revealed that it was the accused who was wearing the red T-shirt, which even during arrest he still was putting on. In the said footage he was also seen assaulting the deceased.PW11 stated that could also not tell exactly where the deceased died, but independent witnesses had confirmed that he was last seen fighting the deceased and later took their separate directions going home. He therefore charged the accused based on circumstantial evidence as nobody saw him strangle the deceased.

(ii) Defence Case 53. DW1, Richard Musyoki Kongela recalled that on 29. 01. 2021, he did farm work until about midday and then was sent by his mum to the river to fetch water. There he met his friend Charles Kioko (PW5) and went back home together. He then showered, and left for Kivaani market while accompanied by PW5. At the said market, they relaxed chewing ‘miraa’ until about 6. 00 pm, then went to Kyamuti club until about 8:30 pm before proceeding to Caribbean club to meet their other friends PW6 & PW8.

54. At the bar they ordered ‘keg beer’ and while they were drinking, PW8 asked PW5 to buy him alcohol to which PW5 responded that he did not have money. PW8 then started making noise, quarrelling, and pushing PW5 and this forcing the deceased to come in between them to stop the fight. Another fight then ensued between Charles (PW5), the deceased, Simon, and Polycarp and they were eventually thrown out from the club but continued to exchange words outside the said club.

55. The accused further testified that the deceased was putting on black trouser, a red jumper and old school shoes, while he had his jeans, army top, and army cap. The person who was putting on the white T-shirt printed No.14 on the back was Charles Kioko (PW5). He also referred to the red jacket produced in court and stated that he did not recognize the same.

56. Back to the events at the club, DW1 stated that after being thrown out of the club, he went home accompanied by Charles Kioko (PW5), Stephen Nzau (PW6), Jackson Muthama Kaloki, and Samson Muli Nguta (PW8). He also confirmed that the deceased was with them but was walking about 30 to 40m ahead of them. When they reached Zipporah bridge, the deceased slipped and fell off the bridge and they rushed to help him. He personally did not see him fall but heard his screams for help.

57. They rushed down the stream with PW6 and found the deceased struggling to get out of the water and managed to rescue him. They inquired if he was hurt, but the deceased told them that he was ok. PW8 at this point told them that he could not rescue the deceased as he had refused to buy him alcohol and this led him to exchange harsh words with PW8 and they ended up fighting before being separated by Polycarp, Jackson and Stephen. After the fight, he did not see the deceased again and was also not sure where Samson, Polycarp and the deceased went as he left them at the bridge.

58. The following day he went on with his daily chores until about noon, when his mum told him that she heard that Peter Mbithi had died and his body had been found within Beatrice’s Muambua’s compound. He wanted to go to the scene, but his mother told him that the deceased body had already been picked up by the police and transferred to Kangundo Level 4 Hospital Mortuary. About one week later, he was arrested and after investigations was charged with the offence before the court.

59. The accused person reiterated that he did not suffocate and/or strangle the deceased and affirmed that the deceased was his friend and that he did not hold any grudge against him. He therefore had no motive to kill him. He also confirmed that they were all drunk by the time they were leaving “Caribbean club” and had also carried takeaway alcohol, which they continued to consume

60. Under cross-examination, he testified that he did not participate in killing the deceased, had no grudge against him and neither did he see any of his friends strangle the deceased. He affirmed that while going home he was with Stephen, Samson, Polycarp, Jackson and the deceased who was ahead of them. He (the deceased) accidentally slipped and fell off the bridge into the stream. He did not see him fall but had his screams as he rolled down into the stream and immediately dashed into the water to rescue him

61. DW1 was referred to the evidence of PW6 and PW8, where they alleged that he was the one fighting the deceased inside the stream and he responded by vehemently denying the same and insisted that their evidence was not true. He also confirmed that PW4 was not at the scene of the incident as he had earlier left the club at 9. 00 pm and had gone home.

62. On re-examination, the accused reiterated that PW4 and PW6 never saw them fight with the deceased, while PW8 had testified that after the group fight, everybody had walked away and he never saw the accused murder the deceased. He further clarified that as they were walking home, the deceased and Polycarp were walking 30 to 40m ahead of them and he did not know why the deceased fell off the bridge. He also did not assault him as alleged.

63. DW2, Mary Mutile testified that she is a business lady and the accused was her second-born son who was born in 1994, went to school up to class 8 at Mukyuni primary school and thereafter undertook a Mechanical course at Mwalimu college-Mutituni. She further confirmed that her son resided within her home and was a disciplined boy who was never in trouble with the local administration

64. On 29. 01. 2021 they had breakfast together with the accused, he then fetched for her water from the river and later left with his friend at about 2. 00-3. 00 pm. She later heard the accused come home at about midnight but she did not talk to him. The next day at about midday, a neighbour told her that “Mbithi” had been killed but she did not go to the scene of the crime. she then informed the accused of what had transpired and he was shocked but did not run away on getting the news. After about a week, her son was arrested and she asked him whether he was involved in the murder but in reply, he was categorical that he did not participate in the said murder.

65. Under cross-examination, she affirmed that on 29. 01. 2021 she saw the accused leave their home at 3. 00 pm after completing his chores and then heard him fumble around the house later at night when he came back. She further confirmed that she did not know where the accused was between 3. 00 pm and midnight and when asked about the incident her son had stated that he was not involved in the murder and neither did he harm the deceased. In re-examination, she reiterated the same evidence.

C. Submissions 66. The accused counsel filed brief submissions wherein he rehashed the evidence adduced and reiterated that it was the prosecution's burden to prove that indeed it was the accused person, who unlawfully caused the deceased’s death. The accused had explained his action on the material night and how he had rescued the deceased after he fell into the stream.

67. The accused reaction after the incident was that of a normal innocent party as he continued with his daily routine until his arrest one week later. The Prosecution had failed to prove with precision that it was the accused who murdered the deceased nor did they prove any motive for the murder. In conclusion, therefore, the ingredients of the offence of murder were not proved and urged that the accused be acquitted under Section 215 of the Criminal Procedure Code.

68. The ODPP did not file any Submissions in response.

D. Analysis & Determination 69. I have considered the evidence and submissions on record and the question that arises before this court is whether the prosecution has proved beyond reasonable doubt that the accused murdered one PETER MBITHI MUASA, the deceased herein.

70. Section 203 of the Penal Code under which the accused is charged provides that: -Any person who of malice aforethought causes death of another person by an unlawful act or omission is guilty of murder.

71. Arising from the foregoing the ingredients of murder were explained in the case of Roba Galma Wario vs. Republic [2015] eKLR where the court held that:“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.”

72. In Republic vs. Mohammed Dadi Kokane & & 7 Others [2014] eKLR the elements of the offence of murder were listed by M. Odero, J as follows: -1. The fact of the death of the deceased.2. The cause of such death.3. Proof that the deceased met his death as a result of an unlawful act or omission on the part of the accused persons, and lastly4. Proof that said unlawful act or omission was committed with malice aforethought.

i. Fact and cause of Death 73. All the witnesses, including the accused person, confirmed that “ Peter Mbithi Muasa” died in the early morning hours of 30. 01. 2021, and his body was dumped in PW10’s compound. PW7 (Dr Katua Daniel), the pathologist, who conducted a post-mortem examination on the deceased, confirmed that he found a deep cut wound on the right tibia, multiple bruises on the neck and chest, and injuries to his private parts. The cause of death was determined to be suffocation due to strangulation.

74. The evidence confirms that the deceased’s death was unnatural and caused by external force. The first element is proved beyond reasonable doubt.

ii. Whether it is the accused person who unlawfully caused the deceased's death. 75. PW2 and PW3 confirmed that both the accused and the deceased were patrons at Caribbean Bar on the material evening, and a fight ensued between the friends, forcing them to remove them from the said bar. PW1 also later gave the DCI access to his CCTV video footage, which showed the accused clearly assaulting the deceased. PW2, PW5 and PW8 also all positively confirmed that they saw the accused assault the deceased outside the bar and later inside the stream.

76. PW11, the investigating officer, also confirmed that they extracted video footage from the CCTV footage and saw the accused assaulting the deceased. The deceased was wearing a red hooded jacket, while the accused had a red T-shirt, which coincidentally he was putting on the day he was arrested.

77. DW1 in defence confirmed that he was with the deceased and other friends at Caribbean bar, and actually walked together as they were going home, but categorically denied assaulting the deceased and or having a hand in his death. It was his evidence that the deceased fell off the bridge, and his role was to rescue him while being assisted by PW6. After that, they parted ways and the following day were informed of the unfortunate demise of the deceased.

78. DW1 further stated that he had no grudge against the accused nor did he have any motive to murder him, and therefore urged the court to find that the evidence adduced was not cogent enough to sustain his conviction.

79. In this case, however, none of the witnesses saw the Appellant committing the offence in question. The evidence adduced was largely circumstantial and did prove that the accused did assault the deceased, who was later found dead. However, proof in criminal cases can either be by direct evidence or circumstantial evidence.

80. When a witness, such as an eyewitness, asserts actual knowledge of a fact, that witness's testimony is direct evidence. On the other hand, evidence of facts and circumstances from which reasonable inferences may be drawn is circumstantial evidence. Therefore, where circumstantial evidence meets the legal threshold, it may well be a basis for finding the accused person culpable of the offence charged.

81. Whereas it is appreciated that a charge may be sustained based on circumstantial evidence the courts have established a certain threshold to be met if a conviction is to be based thereon. In Sawe –vs- Rep [2003] KLR 364 the Court of Appeal held.“In order to justify on circumstantial evidence, the inference of guilt, the inculpatory facts must be incompatible with the innocence of the accused and incapable of explanation upon any other reasonable hypotheses than that of his guilt; Circumstantial evidence can be a basis of a conviction only if there is no other existing circumstances weakening the chain of circumstances relied on; The burden of proving facts which justify the drawing of this inference from the facts to the exclusion of any other reasonable hypothesis of innocence is on the prosecution. This burden always remains with the prosecution and never shifts to the accused.”

82. In Neema Mwandoro Ndurya v. R [2008] eKLR, the Court of Appeal cited with approval the case of R vs. Taylor Weaver and Donovan (1928) 21 Cr. App. R 20 where the court stated that:“Circumstantial evidence is often said to be the best evidence. It is the evidence of surrounding circumstances which by intensified examination is capable of proving a proposition with accuracy of mathematics. It is no derogation of evidence to say that it is circumstantial.”

83. In summation, of the aforestated case law, it is thus required that before any conviction based on circumstantial evidence is reached, the said evidence adduced must be adequate to prove the case on the required standard of beyond reasonable doubt. In that regard, the court will admit circumstantial evidence if it meets the following criteria;a.Evidence that is logically connected to the case.b.The evidence must prove or disapprove a fact relevant to the case.c.The evidence should be reliable, trustworthy with minimal chance of falsehood.d.Its potential to influence a decision should not outweigh the probative value.e.The evidence should not be hearsay.

84. The CCTV footage, as reviewed by PW2 and PW11, and multiple witness accounts did prove that the accused person severely assaulted the deceased. Their fight started within the bar, continued once outside the bar, and escalated while they were enroute home. PW3 confirmed in his evidence that, “It is the accused who was assaulting the deceased” and this was in relation to his action outside the bar, while PW8, stated that “ I found them fighting in the stream, Musyoki was beating Mbithi”. This was at the bridge “kwa Zipporah”.

85. Though it is always the prosecution's burden to prove their case, there are some exceptions and/or extenuating circumstances where the burden is shifted to the accused, especially where the facts he intends to prove are within his own knowledge.

86. Sections 111(1) and 119 of the Evidence Act both of which provide as follows:“111. (1)When a person is accused of any offence, the burden of proving the existence of circumstances bringing the case within any exception or exemption from, or qualification to, the operation of the law creating the offence with which he is charged and the burden of proving any fact, especially within the knowledge of such person is upon him:Provided that such burden shall be deemed to be discharged if the court is satisfied by evidence given by the prosecuting, whether in cross-examination or otherwise, that such circumstances or facts exist:Provided further that the person accused shall be entitled to be acquitted of the offence with which he is charged if the court is satisfied that the evidence given by either the prosecution or the defence creates a reasonable doubt as to the guilt of the accused person in respect of that offence.”“119. The court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case.”

87. The accused, when given an opportunity to extricate himself from the allegations made against him, opted to totally deny any involvement in harming the deceased, while there was direct evidence implicating him in continuously assaulting the deceased. His evidence was escapist, untruthful and must be taken with a pinch of salt. See the case of Ndungu Kimanji v Republic [1979] KLR 282 where it was held that :-“The witness in a criminal case upon whose evidence it is proposed to rely should not create an impression in the mind of the Court that he is not a straightforward person, or raise a suspicion about his trustworthiness, or do (or say) something which indicates that he is a person of doubtful integrity, and therefore an unreliable witness which makes it unsafe to accept his evidence.”

88. The only safe inference the court can draw from the accused's defence is that he was lying to cover up his action, and since there are no other extenuating circumstances to weaken the prosecution's evidence of his involvement in fatally injuring the deceased. A proper analysis of the prosecution and defence evidence leads to this conclusion, and I do find and hold that within all human probability, it is the accused who murdered and/or caused fatal injuries that led to the death of “Peter Mbithi Muasa” and none else.

iii. Malice Aforethought 89. Having found that the prosecution has proved actus reus, the other issue for determination is whether malice aforethought can be inferred from the prosecution evidence presented. The offence of murder is complete when, “malice aforethought” is established. Section 206 of the Penal Code, provides that: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.”

90. It is sufficient to say that the mental element required by section 206 of the Penal Code can be equated to broad guidelines set out in the case of Tubere s/o Ochen vs. Republic [1945] 12 EACA 63:“The weapon in possession of the accused while carrying out the intention, the manner in which it was used to strike the human being whether one off blow or violent multiple blows, the conduct of the accused in fleeing from the scene afterwards, the permanency or dangerous severity of the bodily harm and that cumulatively the death of the deceased must ensue from the bodily harm intentionally inflicted.”

91. In assessing the weight to be given to intention as an element of murder, the relevant circumstances must be considered as to whether the appellant foresaw the real or substantial risk and the consequences of targeting the part of the body that may result in the fatal injuries suffered by the deceased.

92. In this case, though the accused denied having a hand in assaulting the deceased, the evidence adduced confirms otherwise. All witnesses further confirmed that all the parties were drunk, and this raises a valid defence, which I am duty-bound to take into account and determine whether, under the said circumstances, the accused's actions were undertaken with malice aforethought.

93. Section 13 of the penal code deals with the issue of intoxication in criminal matters and provides that:“13(1)Save as provided in this section, intoxication shall not constitute a defence to any criminal charge.(2)Intoxication shall be a defence to any criminal charge if by reason thereof the person charged at the time of the act or omission complained of did not know that such act or omission was wrong or did not know what he was doing and –a.the state of intoxication was caused without his consent by the malicious or negligent act of another person; orb.the person charged was by reason of intoxication insane, temporarily or otherwise, at the time of such act or omission.(3)Where the defence under subsection (2) is established, then in a case falling under paragraph (a) thereof the accused shall be discharged, and in a case falling under paragraph (b) the provisions of this Code and of the Criminal Procedure Code relating to insanity shall apply.(4)Intoxication shall be taken into account for the purpose of determining whether the person charged had formed any intention, specific or otherwise, in the absence of which he would not be guilty of the offence.(5)For the purpose of this section, “intoxication” includes a state produced by narcotics or drugs.”

94. Under section 13 of the Penal Code, intoxication is not a general defence to a criminal offence, except in the circumstances set out therein. A person who commits an offence while intoxicated is not ipso facto excused from the consequences of his act. The aforementioned section affords a defence of intoxication in three situations as follows.

95. The first situation is in what is called involuntary intoxication, where at the time of the commission of the act complained of, the accused person does not know that it is wrong or does not know what he is doing, because of intoxication caused without his consent by the malicious or negligent act of another person. In such a case, the court is required to discharge the accused person.

96. The second situation is where the accused person, by reason of intoxication, is insane, temporarily or otherwise, so that at the time of commission of the act complained of, he does not know that it is wrong or does not know what he is doing. This situation brings the case within the M’Naghten Rules and the court is required to deal with the accused person in the manner prescribed by the Criminal Procedure Code for accused persons who were insane at the time of commission of the offence, culminating in a special finding of guilty but insane and the detention of the accused person in a mental hospital at the pleasure of the President.

97. In Rex v. Retief [1940-1943] EA 71, the former Court of Appeal for Eastern Africa explained this aspect of the defence of intoxication as follows:“The insanity whether produced by drunkenness or otherwise is a defence to the crime charged. The law takes no note of the cause of insanity and, if actual insanity in fact supervenes as the result of alcoholic excess, it furnishes as complete an answer to a criminal charge as insanity induced by any other cause. It is immaterial whether the insanity so induced was permanent or temporary and if a man’s intoxication were such as to induce insanity so that he did not know the nature of his act or that his act was wrongful, his act would be excusable on the ground of insanity and the verdict should be as laid down in section 159 of the Criminal Procedure Code ‘guilty of the act charged but insane when he did the act.’ ”

98. The third situation, contemplated by section 13(4) of the Penal Code, arises where, by reason of intoxication, the accused person is incapable of forming a specific intent, which is an element of the offence charged. Sometimes this situation is referred to as “intoxication or drunkenness negativing mens rea”. In Said Karisa Kimunzu v. Republic, CR App No. 266 of 2006 (Msa), the Court stated thus regarding intoxication or drunkenness negativing mens rea:“But under subsection (4) the court is required to take into account the issue of whether the drunkenness or intoxication deprived the person charged of the ability to form the specific intention required for the commission of a particular crime. In a charge of murder such as the one under consideration, the specific intention required to prove such an offence is malice aforethought as defined in section 206 of the Penal Code. If there be evidence of drunkenness or intoxication then under section 13(4) of the Penal Code, a trial court is required to take that into account for the purpose of determining whether the person charged was capable of forming any intention, specific or otherwise, in the absence of which he would not be guilty of the offence. In the circumstance of this appeal, the learned trial Judge was required to take into account the appellant’s drinking spree of the previous night and even that morning in determining the issue of whether the appellant was capable of forming and had formed the intention to kill his son.”

99. Based on the evidence presented, am not satisfied that malice aforethought has been established in terms of Section 206 of the Penal Code as all the parties involved were in a state of drunken stupor, when the dispute arose, resulting in the accused person assaulting the deceased and inflicting the injuries that unfortunately lead to his death. No prior grudge was also shown to exist, which would have motivated the assault occasioned.

101. Having so determined, the court falls back to Section 179 of the Criminal Procedure Code, which provides-1. When a person is charged with an offence consisting of several particulars, a combination of some only of which constitutes a complete minor offence, and the combination is proved but the remaining particulars are not proved, he may be convicted of the minor offence although he was not charged with it.2. When a person is charged with an offence and facts are proved which reduce it to a minor offence, he may be convicted of the minor offence although he was not charged with it.

E. Disposition. 102. In the premises, I find that the offence of Murder has not been proved and accordingly reduce the charge of Murder to Manslaughter. The accused is acquitted of the charge of Murder but convicted of the lesser offence of Manslaughter Contrary to Section 202 as read with Section 205 of the Penal Code.

103. Sentencing will await the filing of a pre-sentence report by the probation and aftercare services department, within the next 21 days.It is so Ordered.

JUDGMENT, SIGNED AT MARSABIT THIS 27TH DAY OF MARCH, 2025. FRANCIS RAYOLA OLELJUDGEJUDGMENT READ AND DELIVERED IN OPEN COURT THIS 27TH DAY OF MARCH, 2025. FRANCIS RAYOLA OLELJUDGEIn the presence of:-……………………………………………………Accused…………………………………………………..For O.D.P.P…………………………………………………Court AssistantPage 15 of 15