Republic v Nahashon Kareithi & Erastus Mwenda Kiriama
The bottom line
#In Kenya, you can be convicted of murder even without a formal post-mortem report if the evidence clearly shows the death was caused by you.
What this practically means
#Executive summary
#Key legal issues
#Proof of death and cause of death despite non-production of post-mortem report and absence of the investigating officer
Death was proved by the evidence of witnesses and the post-mortem findings produced by PW7; conviction can stand even without the report being formally produced where death is clearly at the hands of the accused.
The court relied on Ndungu v Republic and R v S Smith to hold death may be inferred from evidence. PW7 produced the post-mortem prepared by Dr Guantai, which found skull fracture, soil in the oral cavity, charring and mutilation, and concluded death was caused by blunt trauma to the head.
Credibility of A1's exculpatory account implicating A2
A1's account that he found A2 near the body after being kicked was disbelieved as inconsistent with the evidence of PW1 and PW5 who saw him burning leaves at the burial spot at 4.00 pm.
The court found it impossible that PW2 would again find A1 at 5.00 pm having fainted after being kicked at 1.00 pm, and noted PW1 was related to the deceased and could not have fabricated the case if PW2 and A2 were the real culprits. The evidence against A1 was proved beyond reasonable doubt.
A2's defence of alibi
A2's alibi that he was in Embu on the material day, corroborated by DW3, was reasonable and dislodged A1's claim that A2 was found near the body; A2 was acquitted.
PW1 and PW5 did not see A2 at the scene where A1 was burning leaves. DW3 testified he accompanied A2 from Embu on 28.9.2013. With no further prosecution evidence, the court found the alibi reasonable and acquitted A2.
Malice aforethought inferred from the nature of the injuries
Malice aforethought was inferred from the targeted injuries: soil filling the oral cavity to obstruct breathing, skull fracture and mutilation showing the assailants aimed to ensure death.
From the injuries ascertained by the doctor, the parts of the body targeted and the nature of the injuries suffered by the minor deceased, the court found the assailants' aim was to ensure death; the body was mutilated such that the child could not have been rescued.
Legal principles established
#- A conviction for murder can still be sustained even where the post-mortem report is not produced, where death is clearly at the hands of an accused person.
- Death can be inferred by way of evidence.
- The burden of establishing the ingredients of murder beyond all reasonable doubt lies on the prosecution.
Court orders
#- 1.1st accused (Nahashon Kareithi) found guilty and convicted under section 215 of the Criminal Procedure Code
- 2.2nd accused (Erastus Mwenda Kiriama) acquitted under section 215 of the Criminal Procedure Code
- 3.Mention on 28.2.2019 for victim impact statement (sentencing deferred)
- Jurisdiction invoked
- Original criminal jurisdiction over murder contrary to section 203 as read with section 204 of the Penal Code
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Republic v Nahashon Kareithi & Erastus Mwenda Kiriama", Case Analysis (2019). Criminal Case No. 85 of 2013. Source:
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.