REPUBLIC V MUSILI TULO[2012]eKLR 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 or any person who has committed or attempted to commit a felony.” In this case, the accused clearly intended to cause the death, or at the very least grievous harm to the deceased. He stabbed her in the mouth thereby cutting her tongue, gouged her eyes, cut her ears and skinned her leg and face. These multiple injuries can only impute malice aforethought on the part of the accused. The accused has raised the defence of alibi that he was away in Narok when the offence was committed. Of course a person raising the defence of alibi need not prove it. It is upto the prosecution to dislodge it with a rider that the same should be raised early in the trial to give the prosecution opportunity to rebut it. In this case however, the same was not raised by the accused when cross-examining the witnesses. It only came through his defence statement. However, given his confessionary statement which lays out in his own words how he killed the deceased, the accused’s alibi is wholly displaced. On the whole, I am satisfied beyond reasonable doubt that the accused committed the offence charged. Accordingly I convict the accused for the offence of murder contrary to section 203 as read with section 204 of the Penal Code. DATED, SIGNED and DELIVERED at MACHAKOS this 28TH dayof SEPTEMBER 2012. ASIKE MAKHANDIA JUDGE While the design, structure and metadata of the Case Search database are licensed by Kenya Law under a Creative Commons Attribution-ShareAlike 3.0 Unported License, the texts of the judicial opinions contained in it are in the public domain and are free from any copyright restrictions. Read our Privacy Policy | Disclaimer http://www.kenyalaw.org - Page 8/8 Powered by TCPDF (www.tcpdf.org)