c. Central to murder cases, is the question whether the death of the deceased by the accused persons was actuated with malice aforethought.
10.The operative provisions as to manifestation of this element, is precisely outlined in Section 206 of the Penal Code. In summary malice aforethought as an intention to cause the death of any person, whether such person is the person actually killed, or knowledge that the act or omission causing death will probably cause death, although such knowledge is accompanied by indifference whether death is caused or not, or by a wish that it may not be caused. See the principles in the cases of Langat vs Republic (2002) KLR 191, Republic v Felix Nthiwa Munyao Nairobi HCCR 43 of 1999, Jesse Wagi Mbugua –vs- Republic Nairobi CACRA No 35 OF 1991, rex v Tubere s/o Ochen (1945) 12 EACA 63.
11.Malice aforethought is strictly speaking a subjective condition of the mind which necessarily manifest itself by words and conduct of the person subject matter in the criminal process. It is therefore inferred from the acts of omission committed by the alleged accused person. The doctrine may either be said to be express or implied malice aforethought. It is good to emphasize some of the difficulties likely to be encountered by the trier of facts to clearly define with precision the features of implied malice aforethought. However, that is not the case with express malice which is a design formed in the mind of the perpetrator of taking away another man’s life or to cause grievous harm In S v Mini 1963 (3) SA 188 (A) at 196 E Williamson J.A expressed himself as follows:
12.Reference to this element is to be found in the evidence of PW1 who saw the 1st accused while armed with a club, attacked the deceased on the head and immediately he fell down on the ground on impact of the assault. PW1 went on to state that the 1st accused left the scene without offering any first aid or assistance to the deceased person. He attributed the genesis of the conflict as between the 1st accused and the deceased grounded on the demands by the deceased to have the 2nd accused to return back to their matrimonial home. This was corroborated by the evidence of PW2 as to the circumstances of the offence and the resultant death of the deceased. The prosecution in addition tendered the post mortem report as exhibit 1 which opined the cause of death and reasons in support as a consequence of the severe head injury. The closer one can deduce an answer to the commission of this offence is the testimony by the 2nd accused. Whereas the 1st accused relied on alibi defence. Obviously, the probative value of the 2nd accused testimony did not rock the prosecution case as to the characterization of malice aforethought to cause the death of the deceased. Not only is malice aforethought present in the instant case but there was an actual design by the 1st accused to kill or fatally injure the deceased. So far attention is directed at the conduct of the 1st accused before, during, and after the commission of the offence as directly seen by PW1. I find no justification, excuse or mitigation on the part of the 1st accused to inflict serious harm targeted at vulnerable organ or part of the deceased body. Perhaps the 1st accused unlawful acts was to permanently restrain or prohibit the deceased in following his wife herein the 2nd accused. In the interpretation of Section 206 of the penal code if the dangerous force thus used results in the death of the victim, the crime is murder, just as much as if the danger was inherent in the very nature of the felony itself. I find the element of malice aforethought proved beyond reasonable doubt.
13.Whether in view of the defence by the accused persons, this court can satisfactorily conclude that there was positive identification of the perpetrators to this offence. In Wamunga versus Republic (1989) KLR 424 the Court of Appeal stated thus “ it is trite law that where the only evidence against a defendant is evidence on identification or recognition, a trial court is enjoined to examine such evidence carefully and to be satisfied that the circumstances of identification re favourable and free from possibility of error before it can safely make it the basis of a conviction also in Ogeto v Republic (2004) 19, it was stated that: it is trite law that a fact can be proved by the evidence of a single witness although there is need to text with the greatest care the identification evidence of such a witness especially when it is shown that conditions favoring identification were difficult. Further, the court has to bear in mind that it is possible for a witness to be honest to be mistaken”
14.As far as the 1st accused person in concerned, on identification he raised an alibi defence. There is a relatively well developed body of jurisprudence which deals with the principles for consideration to give effect to the defence of the accused not being at the scene. In the case of Kiarie v R (1984) KLR the court of Appeal laid down the following principle: “ An alibi raises a specific defence and an accused person who puts an alibi as an answer to a charge does not in law thereby assume any burden of proving that answer and its sufficient if an alibi introduces into the mind of a court a doubt that is not unreasonable. The judge had erred in accepting the trial magistrate’s finding on the alibi because the findings was not supported by any reason. (See also R v Sukha Singh S/o Wazer Singh & Others (1939) 6 EACA 145 it was held as follows: If a person is accused of anything and his defence is an alibi, he should bring forward that alibi as soon as he can because, firstly, if he does not bring it forward until months afterwards, there is naturally a doubt as to whether he has not been preparing it in the internal and secondly, if he brings it forward at the earliest possible moment it will give the prosecution an opportunity of inquiring into that alibi and if they satisfied as to its genuineness, proceedings will be stopped”
15.On review of the evidence of PW1 & PW2 the plea of alibi by the 1st accused was demolished and there is no clear and satisfying evidence that he was elsewhere other than the scene of the murder. Although the 1st accused gave a long chronology of the places and as to time which was aimed at exonerating as a perpetrator of the offence, there is indeed some doubt to such a testimony. I also highlight that the 1st accused person alibi defence was never corroborated by any independent witnesses. In this case the plea of alibi named some physical locations but failed to provide accuracy of his movements to warrant the court to satisfactory believe that he was not at the scene. Given the veracity of the direct and circumstantial evidence by PW1, PW2, & PW3 who placed the 1st accused at the scene of the crime the best of his evidence can only be summed up as a fabrication. It is trite that the one who claims to rely on the plea of alibi has to prove it beyond reasonable doubt for the court to take it into consideration. In the same case here the 1st accused has failed miserably to prove with accuracy his alibi defence. The 1st accused therefore who was alleged to have committed the offence of murder by the state was actually at the scene of the crime. In the case of Ricky Ganda vs The State (2012) ZAESHC 59, the Free State High Court Bloemfontein held: “ The acceptance of the evidence on behalf of the state cannot by itself be sufficient basis for rejecting the alibi evidence. Something more is required. The evidence must be considered in its totality. In order to convict there must be no reasonable doubt that the evidence implicating him is true…the correct approach is to consider the alibi in light of the totality of the evidence in the case and the courts impression of the witnesses…it is acceptable in totality in evaluating the evidence to consider the inherent probabilities…The proper approach is to weigh up all the elements which point towards the guilt of the accused against all those which are indicative of his innocence, taking proper account of inherent strengths and weaknesses, probabilities and improbabilities on both sides and having done so, to decide whether the balance weigh so heavily in favour of the state as to exclude any reasonable doubt about the accused’s guilt.”
16.In respect to the 2nd accused this court considering the evidence as a whole more specifically PW1 & PW2 I am satisfied that the conditions under which identification is claimed to have been made were favourable. In particular, the prior knowledge of the 2nd accused by PW1 & PW2 who apparently happened to be their biological mother. There are no material discrepancies deducible from the twin testimony of her children. Therefore, even the defence testimony by the 2nd accused does not water down the testimony of PW1 and PW2 in respect of proper and positive identification. However, in this case the 2nd accused testimony seem to corroborate PW1 & PW2 evidence. In this regard I have also perused and analyzed the defence by the 2nd accused. In the premises, the 2nd accused gave a narrative underlying her marital union with the deceased. She stated before court that during their marriage the deceased deliberately neglected the family by failing to provide for their basic survival and maintenance rights. As this were aggravating factors she made a decision to move out of the matrimonial home with some of her children to go and seek shelter within the homestead of the 1st accused. Although the 2nd accused denied cohabiting with the 1st accused a love triangle with the deceased sparked the fight. This case involved a scenario in which the deceased went after his family which was within the premises under the control and occupation of the 1st accused person. The anger, aggression, and violence exhibited between the 1st accused and the deceased resulted in the death in question subject matter of this criminal proceeding. This was a case where the deceased went for his rival who reiterated in turn with full force and in the end he became the 1st casualty. The impulsive attack by the deceased upon the 1st accused slightly inflicted harm which was not fatal, simply why is before this court on account of that offence. Of course the ultimate question is whether the 2nd accused was also a protagonist in the triangle of homicide. In this 2nd limb of analysis, there are dramatic differences between the testimonies of PW1, PW2, & PW3 whether in all this competing interest she can be assumed to be a victim of an offender who killer her partner.
17.In the case at bar the characteristics of the incident demonstrated by the testimonies of PW1 & PW2 is one which displays loss of face on anger and aggression between the two men namely the 1st accused and the deceased. Thus in PW1 evidence it was the 1st accused at the time who attacked the deceased and in retaliation the deceased apparently armed with a knife moved with equal measure to physically assault the 1st accused. The evidence by PW1 does support that the deceased also happened to be his father dropped to the ground and succumbed to death. On my part I find no greater propensity for the 1st accused to have engaged in aggression in particular physical violence pursuant to Section 206 (a) & (b) of the Penal Code likely to occasion the death of the deceased. The prosecution case is set within the boundaries of Section 20 and 21 of the penal code. In this context the brief facts refers where there was not only a primary criminal act that all the participants intended to commit but also a secondary or collateral criminal act that ensued as a result of the actions of the two accused persons as participants to the murder. What did not come out clearly from the prosecution case is whether the mens rea element required of the 2nd accused in furtherance of the crime was proved beyond reasonable doubt. The questions which remained unanswered are whether the deceased assault and the 2nd accused reiterate was in furtherance of the 1st accused common intention to kill him, and whether the 1st and 2nd accused shared a common intention to inflict serious harm likely to cause death. Applying the rule in Section 20 & 21 of the penal code there is no evidence that the end accused had the knowledge required that the 1st accused was likely to inflict physical injury in contravention of section 203 of the Penal Code for her to be held liable as actual doer which gave rise to the offence of murder. For whatever is worthy such degree of specificity is correctly required by the prosecution beyond reasonable doubt and goes towards addressing concerns relating to concurrence between moral blameworthiness and criminal responsibility in the words of the statute on common intention. The legislative purpose behind Section 20 & 21 of the penal code in my view ought to be interpreted purposively bearing in mind the phrase in furtherance of common intention. It is no secret that because of the nature of interpretive exercise courts in Kenya have come to different conclusions as to the mens rea requirement of Section 20 & 21 of the Penal Code.
18.In this respect on evaluation of both the prosecution and defence case and bearing in mind that the burden of proof is always on the state to prove beyond reasonable doubt all the elements of the offence of the crime charged and this burden never shifts, I make the following findings. First and foremost, the evidence by the prosecution points to the 1st Accused person’s guilty beyond reasonable doubt for the offence of murder contrary to Section 203 of the Penal Code as punishable under 204 of the same code. As I have said, I therefore enter conviction in favour of the prosecution as against the 1st Accused for the indictment. Whereas for the 2nd Accused, it is so difficult and risky to define the concept of reasonable doubt as having been established from the prosecution evidence to warrant a finding of guilty piecing together the various aspects stated on oath by the witnesses in support of the charge. Given the shortcomings surrounding the actual involvement of the 2nd Accused the law permits me to find her not guilty and order her acquittal for the offence of murder.