Gerishon Kubai Mwithia v Republic

The court applied Okeno v R and section 214 of the Criminal Procedure Code, holding that irregularities only vitiate a trial where they occasion a failure of justice. The amendment changed only the deceased's name; the person allegedly murdered was the same person, the body was the same, and the facts and particulars were unaffected, so there was no miscarriage of justice.

The court took judicial notice that there is no darkness at 4.00 pm. Visibility was established by the fact that PW2 could see PW1 some 70 metres away, and PW1 led police to the appellant's home where he was arrested. There was no evidence of trees obstructing visibility beyond the single tree beside the road.

Following Ramadhan Kombe v Republic and Ekai v R, the court held that where the cause of death is patently obvious from eyewitness accounts and post mortem findings, failure to produce the weapon neither prejudices the defence nor weakens the prosecution case.

Relying on Republic v Josephine Muthoni Baariu, the court held that since the investigating officer was not at the scene, he could not have testified to the killing. The credible eyewitness evidence identified the appellant as the perpetrator, so no prejudice was caused by his absence.

The court adopted Daniel Muthee v R, holding that the appellant's conduct fell within paragraph (b) of section 206: he must have known death or grievous harm would result and was indifferent to it. Under section 111 of the Evidence Act, malice aforethought could be inferred from his unexplained conduct.

Following Dickson Mwaniki M'Obici, Cherere Gikuli v R, Joseph Kabui v R and Bwenge v Uganda, the court found the participation of an assessor who had not heard the entire prosecution case irregular. However, applying Mwangi v R, a retrial is not ordered unless a conviction might properly result; here two credible eyewitnesses and the post mortem report would certainly sustain a conviction.