Drunkenness as defence? The court won’t stand for it!

“A clear message must go out to those who deliberately induce drunkenness as a cover up for criminal acts” – The Court of Appeal of Kenya in ‘Kupele ole Kitaiga v R (2009)’ eKLR (Criminal Appeal no. 26 of 2007)

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Decorative Scales of Justice

BY Newton Arori

You are in fact very unlikely the get off in a criminal case by saying that you were drunk when you did it, or intoxicated by any other substance for that matter. Even though Section 13 of the Penal Code provides for intoxication as a defence to a criminal charge, the defence is extremely narrow in its application. 

For starters, to successfully plead intoxication as a defence, your intoxicated state must not be voluntarily induced; it should maliciously induced by another person. Second, you must be so intoxicated as to be insane, or to be unable to form the intention to commit an offence.

The test for this is not easy to pass as I illustrate in the following cases.

Joshua Matata Ndonye v Republic (2001) eKLR

On the night of May 27, 1987, Joshua Matata Ndonye returned home at 8.30 pm to find his wife Beatrice and their five children fast asleep. He woke up Beatrice and demanded to be served food like a ‘bwana’ (master). Presumably, the service Beatrice gave him did not meet his standards, for he turned violent and began beating her. Beatrice’s screams caught the attention of Joshua’s mother who came to the rescue. Luckily, Beatrice escaped and spent the night elsewhere. She returned to her home the following morning to find the lifeless bodies of her five children and mother-in-law. She reported the matter and two days later, Joshua was arrested and charged with murder.

He did not deny committing the murders, but put forward the defence of intoxication. Joshua explained that on the fateful night, he and his drinking buddies had consumed, among other alcoholic beverages, 10 litres of ‘muratina’ (popular local brew in Central Kenya).

At the trial court, and later the appellate court, the fact of Joshua’s drunkenness was not disputed. The question before the judges was, was he so drunk so as to be unable to form the intention to commit murder? The evidence seemed to suggest otherwise. The judges reasoned that if Joshua was indeed so drunk the night he committed the offence, then he would not have been strong enough to overpower his wife.  In the end Joshua was found guilty of murder, convicted and sentenced to death. 

Roba Galma Wario v Republic (2015) eKLR

On the night of September 26, 2008, Roba Galma Wario went to a pub, ‘Home Pub’ in the company of a friend. The pub was owned by James Mureithi. They found an acquaintance there and proceeded to drink alcohol. Between 1.00 am and 3.00 am that night, Roba had an altercation with a female customer. James (the pub’s owner) intervened and asked Roba to leave. He left, but came back later and was forcefully evicted. At this point Roba fished a knife from his pocket and stabbed James. Efforts by Roba’s friends’ to stop him were unfruitful. He stabbed James a second time and fled the scene. Meanwhile, James was rushed to Kenyatta National hospital where he was declared dead on arrival. His post mortem report indicated that he had died as a result of stab wounds. Roba was arrested the following morning. 

At trial and on his defence, Roba gave a statement that accentuated his inebriation and therefore his inability to know what he was doing on the night of the murder. He said that before going to the pub he had not only been drinking heavily, but also chewing miraa. He proceeded to narrate how James had asked him to leave his pub because he was making too much noise and disturbing customers. James had verbally and physically abused him, he claimed. Roba argued that he was so intoxicated that he lacked awareness that he was committing murder. In his own words, he was “really drunk.” 

But Robas’s memory gave away his soberness on the night of the murder. The court found that “for someone who claims to have been ‘really drunk’, his recollection of the events of that fateful night in great detail, all except the stabbing” was spectacular. 

Further, Roba had said in his testimony that he had beat up James and left when he realised that he was bleeding. These could not have been the actions of someone who did not know what he was doing!

Similarly, in Republic v Dennis Mutwiri Kibwi (2016) eKLR,the court observed: “In the instant case, the accused related in detail what transpired between him and the deceased on that fateful night; that the deceased had annoyed him by what he told him; that a scuffle ensued and without intending it, he stabbed the deceased with a knife and after that, accused went and reported the incident to the father, then fled. From a careful analysis of the accused’s testimony, if at all he had drunk alcohol that day, he was not drunk at all leave alone being intoxicated. He was very conscious and alert as to what went on and he cannot avail himself to the defence of intoxication.”

Republic v Teresiah Mueni Kilonzo & Another (2017) eKLR

Teresiah Mueni Kilonzo was accused of murdering Maxwell Morang’a at Dandora estate in Nairobi. The night she took his life, Teresiah was in her house with friends, drunk. Maxwell came knocking and called her by name. Teresiah picked a knife, opened the door and stabbed Maxwell who died shortly thereafter. When the matter came before court, the defence of intoxication emerged.   

While it was clear that Teresiah was drunk the night she killed Maxwell, was she so drunk so as to be unaware of what she was doing? Not according to Justice Jessie Lessit. She held, “I find that the accused had taken alcohol that day. She was, however, able to come home on her own. The amount of alcohol consumed did not prevent her from walking and from reasoning. She was able to hear the deceased knock on the door and even recognise his voice. Her senses were very much alert. She was swift. She immediately took the knife from among other utensils and struck the deceased.”

She went on: “Having considered the evidence in regard to the alcohol intake by the accused, and her state of mind at the time of this incident, I find that the accused was not under the influence as not to know what she was doing. I find that her senses were alert, that her moves were swift. Her actions were deliberate and well calculated. I find her mind was not under the influence of alcohol as to make her incapable of knowing what she had done or of knowing what she had done was wrong. I find that the defence of intoxication does not apply to the case against the accused.”

Teresiah was found guilty and convicted accordingly.

Unless you are intoxicated to the point of near unconsciousness at the time of commission of an offence, the defence of intoxication is not for you! (

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