Benson Kimathi Marangu v Republic

3. The background of the case is that the appellant, Benson Kimathi Marangu, and his co-accused (not before the Court), were charged before the High Court at Chuka, with the offence of murder contrary to section 203 as read with section 204 of the Penal Code. The particulars of the offence were that, between 6th and 16th September 2018, at an unknown location, jointly with others not before the court, they murdered MAK. 4. MAK (the deceased) was the daughter of CK (PW10), and was last seen on 6th September 2018 after being dropped by her school bus at Total Petrol Station, Meru. Grace Cherono (PW1) confirmed that PW10 would routinely drop the deceased off at school in the morning. In the evening, the deceased would be dropped off alongside other children at Total Petrol Station, and in the company of her friends, would walk home, but on the 6th of September 2018, she did not return home after school as expected. 5. Several students (PW2-PW5), corroborated the evidence of PW1. Further, they all placed the appellant at the center of the murder. They testified that on the day of her disappearance, the deceased was called by a man she referred to as “uncle”, whom they later identified as the appellant. The man and MAK were seen walking together towards the petrol station, after which she was never seen alive again. PW6 and PW7, the school bus driver and conductor, respectively, confirmed that on the material day, the deceased was dropped off at 4 p.m. at the Total Petrol Station alongside other students. 6. Wilson Mwiti Riungu (PW8), the area chief, testified that on 16th September 2018, he received a message that a young man had come across a schoolgirl's decomposing body at Gitoro forest. In the company of the police, the area manager and the young man, they proceeded to the forest where they found the decomposing body, having been eaten by insects, still dressed in her school uniform. 7. AK (PW9) (deceased’s uncle) was known to the appellant as his sister’s (PW10) friend. He confirmed that the deceased had previously been given sweets and rides home by the appellant, who would pick her from the Total Petrol Station, and whom she used to refer to as “Uncle Kim”. He was categorical that on 4th of September 2018, the appellant dropped the deceased home having picked her from Total Petrol Station. That he got curious to know who had dropped the deceased home from school and on checking it was the appellant. 8. PW10, the deceased’s mother testified that she first met the appellant in 2015 and that they got involved in a romantic relationship that went sour in 2017. In 2018, the friendship was rekindled, but not romantically. She further testified that the deceased liked the appellant and related very well with him. On 13th August 2018, while at work, the appellant called her, claiming he had visited her house and demanded an explanation regarding a man he had found there. According to PW10, the man was a tuition teacher for the children. However, she refused to identify the person as she was under no obligation to. The appellant then requested a meeting to discuss their relationship. They agreed to meet during the week, but PW10 was unable to. She then promised to meet him on 19th August, 2018, but this meeting did not take place. When she called the appellant next to apologize, he became agitated and abusive. 9. Further PW10 testified that on the day the deceased disappeared, she dropped her off at school in the morning. However, on returning home, she did not find the deceased, and they mounted a search with PW1 & PW9 to no avail. She learnt from PW1 and PW9 that the appellant had dropped the deceased off at home on 4th September, 2018. She called the appellant to find out if he had seen the deceased, and https://new.kenyalaw.org/akn/ke/judgment/keca/2025/2139/eng@2025-11-28 2

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he denied having seen her. Later, she received calls from unknown persons asking for ransom money in exchange for her daughter. The search for the deceased continued to no avail. On 16th September 2018, the Presiding Judge Meru and other Judicial Officers broke the news that the deceased's body had been found in the forest. The following day, she identified the deceased body at Meru Level 5 Hospital. 10. Dr. Scholastica Nduta Kimani (PW11), a Pathologist, informed the court that she participated in a postmortem examination of the deceased that was conducted on 20th September 2018, by a team of three doctors and one clinical officer. The general observations of the body revealed an intact school uniform with tears caused by animals, signs of advanced decomposition, including bloating, skin peeling and marbling (blood vessels became prominent due to the advanced stage of decomposition). There were also significant signs of animal predation, which complicated the examination. The external examination revealed multiple injuries, including lacerations on the face and scalp, mutilation of the jaw and face, and injuries to the back of the head. Injuries to the side and front of the head were noted, as bruises with associated scalp haematoma, suggesting blunt force trauma. The internal examination of the body revealed a left linear spiral femur fracture and a fracture of the sternum. The trachea and lungs showed decomposition, and there was fluid accumulation in the chest cavity. The urinary bladder was empty, and no genital injuries were noted. Multiple fractures were found on the scalp and skull, likely caused by blunt force trauma. The suture had separated due to a fracture that extended to the back and the right side of the head. The brain had undergone decomposition, and there was evidence of bleeding between the brain membrane and the bone. They established the cause of death as multiple blunt trauma and mutilation, consistent with violent assault. 11. Elizabeth Waithera Oyengo (PW12), a Government Chemist, testified that they had received several items from Cpl. Juliet Kimwei of the Homicide Unit, which included a sack, spanners, jumpers, and biological samples. The swabs were taken from a motor vehicle, the appellant’s house, and individuals involved in the case. The biological swabs included blood, tissue and mouth swabs. They were requested to analyse the DNA. A report was generated. The DNA revealed a 100% match between a bottle swab and a buccal swab from the appellant. A partial DNA profile from a vaginal swab matched the deceased's blood sample. 12. Cpl. Lilian Munyinyi (PW15), of ATP Cyber Crime Laboratory, testified that they received a memo on 28th September 2018, along with an Infinix Phone and two SIM cards with instructions to extract all incoming and outgoing SMS messages, recover sent and deleted images and obtain any relevant information. They successfully generated reports and recovered data, including call logs. Cell tower locations, chats from Facebook and WhatsApp, contacts (both present and deleted), web history, and files. They highlighted several messages of interest between 26th August 2018 and 6th September 2018. The messages from 26th August indicated communication between the appellant and PW10, revealing a strained relationship characterised by mention of betrayal and hurt feelings. 13. Dennis Owino Onyango (PW17), also a Government Analyst, testified that on 24th September 2018, he received several samples for analysis from Cpl. Juliet Kimwei, which included soil from the scene of the crime (MK4), and shoes from the suspect’s house (MK5 and MK6). He analysed the items and found that the soil marked MK4 matched the soil found in MK5, but not MK6. 14. CIP Robert Ojwang (PW19), DCI Tana River, previously Deputy DCI Imenti North, in Meru, informed the court that he was tasked with the investigation of the missing child. He visited the home of PW10 and interrogated PW1 and PW2. They visited the area near the petrol station, but the CCTV was confined to the petrol station and did not yield much. They visited the school and spoke to PW2 https://new.kenyalaw.org/akn/ke/judgment/keca/2025/2139/eng@2025-11-28 3

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and PW3, whom they found to be very intelligent. They gave a clear description of the appellant as tall chocolate skin, medium built and bearded. PW3 told them that the man who picked the deceased on the material day had also picked her on 4th September 2018, and that the deceased had introduced him to her as an uncle. She said that on the material day the man wore a hood and had driven away in a silver vehicle, which was long and bore the number KBX. The witness said the man became a person of interest. That on 8th September they went back to PW10’s house, wanting details of the man said to have dropped the deceased home, and they got the name and telephone number of the appellant. They confirmed that the appellant had dropped the deceased home on the 4th of September, and that he drove vehicle number KBX 825K-Toyota Mark II Silver in colour. They also learnt from PW1 and PW9 that the appellant and the deceased’s mother were in a relationship. They located the whereabouts of the appellant on the same day and arrested him, they found him in possession of the vehicle KBX 825K, Silver in colour. 15. He stated further that on interrogation, the appellant gave them conflicting information about his whereabouts on the 6th of September 2018. He initially alleged that when PW10 called him at about 6:00 p.m. to enquire whether he had seen the deceased he was on board a matatu heading to Nairobi. He was asked to produce the receipt of the hotel he alleged to have spent the night but he had none. He then changed the story stating that he left Maua for Kaaga at 5:00 p.m. where he slept and left for Nairobi at 3:00 a.m. In Nairobi, he bought chemicals which he supplied to a school on 8th September 2018. He did not have receipts to prove that he travelled either. They searched the appellant’s house in Kaaga and picked two pairs of shoes. One pair was muddy, and the other had soil particles. The shoes were handed over to the DCI homicide team. On the 16th September 2018, they learnt that the deceased's body had been recovered in the forest. They proceeded to the scene where the body was and took it to the mortuary. 16. Daniel Hamisi (PW20), a Safaricom Data Analyst, placed the appellant’s mobile phone near Milimani, Meru - the scene of abduction around 4:00 p.m. on the day the child disappeared. 17. CIP Tobia Mwita (PW21), of DCI, Nairobi, Homicide Section, informed the court that the DCIO Imenti North had asked the headquarters in Nairobi to assist. He was, in turn, detailed to assist in the case. His team attended the post-mortem scheduled for the 19th of September 2018. He also travelled to Meru to lead the investigations. They revisited the scene where the body of the deceased was recovered. They interviewed pupils who were with the deceased, who described the kidnapper and also noted that they had seen the man on the 4th of September 2018 as he drove the deceased away in a silver car. This information corroborated that of PW9 who told them that the appellant had dropped the deceased home on 4th of September 2018. They also interviewed the school bus driver and the conductor who confirmed having dropped the deceased at Total Petrol Station together with other pupils on 6th September 2018. He equally analysed the appellant's call data, which placed him at the Milimani area around 4 p.m. The appellant’s vehicle’s description matched the description given by the witnesses. He also considered the report from the cybercrime unit, which revealed tension between PW10 and the appellant. Further soil samples from the deceased's body matched soil samples from the black leather shoes found at the appellant’s house. He concluded that the appellant was involved in the kidnapping and killing of the deceased. He prepared a report that was handed over to the Director of Public Prosecutions, following which, the appellant was charged with the offence of murder. 18. At the close of the prosecution's case, the appellant was found to have a case to answer. In his sworn testimony, he admitted knowing the deceased and PW10, with whom he had a romantic relationship between 2013 and 2014, after which she was transferred from Maua. They met again in December 2016 when they rekindled their relationship, but not romantically, as he was by then married. On 10th August 2018, PW10 asked to borrow his vehicle to attend a funeral, but he drove her to Eldoret instead. https://new.kenyalaw.org/akn/ke/judgment/keca/2025/2139/eng@2025-11-28 4

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They met again on the 18th of August 2018, with PW10 wanting to rekindle their relationship, but he was not ready. He denied that they disagreed. It was his further evidence that he had last seen the deceased on 4th September 2018, when she waved at him near a car wash and he gave her a lift home. He claimed that he was falsely implicated due to his previous relationship with PW10. 19. In its determination, the trial court found the prosecution had proved its case beyond any reasonable doubt, convicted the appellant and sentenced him to 40 years’ imprisonment. The verdict of the trial court precipitated this appeal. In his memorandum of appeal dated 20th March 2023, the appellant raised ten (10) grounds. Since the grounds are repetitive, we take the liberty to summarise them as follows: i. The learned Judge erred in fact and in law in relaying on circumstantial evidence; ii. The learned Judge erred in fact and in law by relying on the testimony of PW2 and PW3, who were unable to identify the appellant in an identification parade; iii. The Judge erred in fact and in law by concluding that the prosecution had proved its case to the required standard; iv. The Judge erred in law by giving the appellant an excessive sentence. He urged that the conviction be quashed and the sentence be set aside. 20. The case was heard on the Court’s Virtual Platform on the 5th of February 2025. Learned counsel Mr. Igweta appeared for the appellant, whereas learned state counsel Mr. Murithi (deceased) appeared for the respondent. Both counsel briefly highlighted their submissions. 21. In his submissions dated 4th January 2024, learned counsel for the appellant distilled issues for determination to be: whether the appellant was at the scene of the kidnapping on 6th September 2018 and whether the circumstantial evidence before the court was sufficient to sustain a conviction. 22. On whether the appellant was at the scene of the kidnapping on 6th September 2018, counsel submitted that the testimonies of eyewitnesses PW2, PW3, PW4 and PW5 contained significant inconsistencies, lacked clarity, and raised doubts about the identification of the appellant. They described the stranger who allegedly picked the deceased as a man wearing a hood that obscured his face. Counsel argued that the person who picked the deceased on the 6th of September, 2018 purposed to conceal his identity and from the evidence before Court it was not possible to positively identify the person, which casts doubt whether the person who picked the deceased on the 4th of September 2018 was the same one as the one who picked her on the 6th of September 2018. 23. Counsel further contended that neither the motor vehicle allegedly used in the kidnapping nor its photographs were presented in court, despite the vehicle being in police custody, preventing the defence from cross-examining witnesses on the same, which raised doubts whether the vehicle spoken of was the appellant’s. 24. Counsel further contended that the evidence of PW20 did not place the appellant at the kidnapping site; that the voicemail code 132 linked to an incoming call did not indicate how long the appellant was in that location, and the exact distance between the Safaricom mast and the phone at the time of the call or whether he was driving within the mast's coverage area, the signal alone could not place him in the Milimani area. 25. On whether circumstantial evidence before the court was sufficient to sustain a conviction, counsel referred to Musili Tulo v. Republic [2014] KECA 412 (KLR), where this Court laid down the test https://new.kenyalaw.org/akn/ke/judgment/keca/2025/2139/eng@2025-11-28 5

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to be applied in considering whether circumstantial evidence placed before a court could support a conviction. 26. On the pair of shoes that allegedly had soil similar to the soil collected from the forest, counsel argued that the police did not state the criteria they used to select the shoes that were subjected to forensic analysis. Further, there is no evidence to demonstrate how the soil samples were collected from the shoes. Furthermore, he suggested that the soil sample taken from the scene could have been transferred to the appellant's shoes. Additionally, no soil samples were collected from the appellant's home for forensic analysis to compare with the samples gathered from the crime scene. 27. Counsel further asserted that the prosecution failed to provide any tangible evidence demonstrating that the bad relationship between PW10 and the appellant created a motive for the appellant to harbour ill or malicious intentions toward PW10’s family. He contended that the trial court concluded that the ill motive could be deduced from text messages the appellant sent to the PW10, which included phrases such as “nyinyi wanawake ni mashetani sana” and “staki kusikia tena mambo ya wanawake.” He urged that the wording of these messages did not connote ill motive or intention towards the deceased or PW10. To support this contention, counsel relied on Parvin Singh Dhalay v. Republic [1997] KECA 379 (KLR), where this Court held that if there are other co-existing circumstances which would weaken or destroy the inference of guilt, then the case has not been proved beyond any reasonable doubt and in such circumstances an accused is entitled to an acquittal. 28. In opposing the appeal, the respondent’s learned counsel filed submissions dated 31st January 2025. Counsel submitted that all the ingredients of the offence of murder were proved. The deceased's death was proved by PW8, the Assistant Chief of Kinoru Sub-Location, who was informed of the discovery of the deceased’s dead body and, in the company of others, went to the scene in Gitoro forest, where he witnessed the decomposing body of the deceased still wearing a school uniform. PW10, and the pathologists equally confirmed the death. 29. On proof of the perpetrator of the deceased death, counsel submitted the prosecution’s witnesses, who included experts, and ably adduced evidence that pointed at the appellant as the one who committed the heinous act against the deceased. 30. Counsel further argued that evidence provided by PW12, PW13, PW14, PW15, PW16, PW17, PW19, PW20, and PW22, unerringly pointed to the appellant as the perpetrator of the offence, excluding any other reasonable hypothesis of his innocence. In support of his contention, counsel referred to Dorcas Jebet Ketter & Another v. Republic [2013] KECA 401 (KLR), where this Court referred to Kipkering Arap Koske v. Republic [1949] 16 EACA, 135, where it was stated that for a court to convict someone based solely on circumstantial evidence, the incriminating facts must be incompatible with the accused's innocence and must lead to the conclusion that only the accused could be guilty. 31. On the issue of the impugned identification parade, counsel submitted that PW2 testified that on the 4th of September 2018, while in the company of other students and the deceased, a man they had seen before offered the deceased a lift, they again on the same date the deceased disappeared, saw the same man standing next to a black gate, and he called out the deceased. She was also able to identify the man in court, despite being unable to pinpoint him at the identification parade. The witness explained why she feared picking the appellant at the identification parade, as she thought he would go after her and kill her. Furthermore, PW2’s testimony was corroborated by other students, PW3 to PW5. 32. As regards malice aforethought on the part of the appellant counsel urged that it was demonstrated by the fact that the appellant was the last person seen with the deceased when she was alive, followed by the discovery of her lifeless body in Gitoro forest. Additionally, the appellant's actions on 4th and https://new.kenyalaw.org/akn/ke/judgment/keca/2025/2139/eng@2025-11-28 6

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6th September 2018, of picking up the deceased from her school drop-off point at Total Petrol Station (Milimani) without informing her mother or her caregivers, suggest premeditation on his part. In support counsel, referred to Tubere S/O Ochen [1945]12 EACA 63. 33. On the severity of the sentence meted out to the appellant, counsel submitted that the appellant having been convicted as charged, 40 years was a lenient sentence. He urged the dismissal of the appeal in its entirety. 34. We have subjected the evidence to fresh evaluation and considered the submissions of counsel and the authorities cited. This Court will not usually interfere with findings of fact made by the trial court unless they are based on no evidence, a misapprehension of the evidence, or the Judge is shown demonstrably to have acted on wrong principles in reaching the findings. The principle was stated by this Court in Peters v. Sunday Post [1958] EA 424 at page 429 as follows: “ It is a strong thing for an appellate court to differ from the finding, on a question of fact, of the judge who tried the case, and who has had the advantage of seeing and hearing the witnesses. An appellate court has, indeed, jurisdiction to review the evidence in order to determine whether the conclusion originally reached upon that evidence should stand. But this is a jurisdiction which should be exercised with caution: it is not enough that the appellate court might itself have come to a different conclusion.” 35. We have collapsed the issues for consideration into two, namely; whether the prosecution proved the ingredients of the offence of murder beyond any reasonable doubt against the appellant, and whether the sentence meted out was lawful. 36. In a charge of murder, the prosecution has the singular task of proving the following three ingredients to secure a conviction: 37. i. That death occurred; ii. That the death was caused by the unlawful act of commission or omission of the accused; and iii. That the accused had malice aforethought as he committed the said act. (See Nyambura & Others v. Republic [2001] KLR 355). The evidence of several witnesses, including the family of the deceased and the autopsy report of three pathologists, indicates that the deceased died. The evidence of PW11, one of the pathologists, suggests that the deceased died of multiple trauma. The appellant does not dispute this fact. According to PW11, at postmortem, the general observation of the body revealed an intact school uniform with tears caused by animals, signs of advanced decomposition, including bloating, skin peeling and marbling (blood vessels became prominent due to the advanced stage of decomposition). There were also significant signs of animal predation, which complicated the examination. The external examination revealed multiple injuries, including lacerations on the face and scalp, mutilation of the jaw and face, and injuries to the back of the head. Injuries to the side and front of the head were noted, as bruises with associated scalp haematoma, suggesting blunt force trauma. The internal examination of the body revealed a left linear spiral femur fracture and a fracture of the sternum. The trachea and lungs showed decomposition, and there was fluid accumulation in the chest cavity. The urinary bladder was empty, and no genital injuries were noted. Multiple fractures were found on the scalp and skull, likely caused by blunt force trauma. The suture had separated, caused by a fracture which extended to the back and the right side of the head. The brain had undergone decomposition, and there was evidence of bleeding between the brain membrane and the bone. https://new.kenyalaw.org/akn/ke/judgment/keca/2025/2139/eng@2025-11-28 7

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38. The critical question is who committed the heinous act. The prosecution relied on the evidence that the person last seen with the deceased was the appellant, which the defence urged was not credible. PW1, PW3, PW4, and PW5 testified that they saw the appellant call the deceased as she was walking home with them. They had seen the appellant before. In particular, they recalled that he picked her up on the 4th of September 2018. PW1 and PW9 confirmed that the appellant dropped the deceased off at home on the 4th of September, 2018. This the appellant admitted. PW2 and PW3 knew the vehicle that the deceased was picked up in. They described the appellant so well that PW19 and others easily picked him from a bar on 8th September 2018. The children were described as intelligent. 39. The prosecution also heavily relied on forensic evidence to mount circumstantial evidence to support the charge. During the investigation, several items were collected to assist. PW12 received several items, including blood, tissue, and a mouth swab. She was required to determine the origin of the blood stains and analyse the DNA on the items. Surprisingly, there was no mention of the blood-stained items; indeed, nothing turned on her analysis. None of the analyses connected the appellant to the deceased. 40. PW17, another Government Analyst, received soil samples and two pairs of shoes from the appellant’s house, MK4, MK5 and MK6. During the analysis using X-ray diffraction, he found that the soil collected from where the deceased body was recovered matched the soil found on MK5, but not on MK6. He explained that the soil is subjected to an analysis to determine its chemical composition. 41. PW15, of ATPU Headquarters, Cyber Crime Laboratory, received an exhibit memo on the 28th September 2018, together with an Infinix phone and two SIM cards. She extracted information relevant to the case, including SMS messages between the 26th of August 2018 and the 6th of September 2018, exchanged between PW10 and the appellant, revealing a strained relationship between the two, characterised by mention of betrayal and hard feelings. 42. PW20, of the Security and Law Enforcement Department at Safaricom, was detailed to investigate a line number 072617449, the registered owner and information on incoming and outgoing numbers between the 1st and 6th of September 2018. He confirmed the subscriber of the line was the appellant. He was also tasked to give details of the phone location at 3.07 p.m. He placed the phone at Milimani in Meru. 43. Circumstantial evidence is evidence of the surroundings that, when taken cumulatively, unerringly points to the accused person. It is as good as direct evidence. In Republic v. Mohammed & Another (Petition 39 of 2018) [2019] KESC 48 (KLR) (15 March 2019), the Supreme Court held as follows regarding circumstantial evidence: “ 5. Circumstantial evidence was like any other evidence. Though, its probative value should be reasonable, and not speculative, inferences ought to be drawn from the facts of a case. In contrast to direct testimonial evidence, it was conceptualized in circumstances surrounding the disputed questions of fact. Circumstantial evidence should never be given a derogatory tag. For a conviction to be sustained on the basis of circumstantial evidence, the chain of events had to be so complete that it established the culpability of the respondents, and no one else, without any reasonable doubt. 6. There had to be no other co-existing circumstances weakening the chain of circumstances relied on and the circumstances from which the guilt inference was drawn had to be of definite tendency and to precisely point toward the guilt of the respondents.” https://new.kenyalaw.org/akn/ke/judgment/keca/2025/2139/eng@2025-11-28 8

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44. In Sawe v. Republic [2003] KLR 364, this Court stated as follows on circumstantial evidence: “ In order to justify on circumstantial evidence, the inference of guilt, the inculpatory facts must be incompatible with the innocence of the accused and incapable of explanation upon any other co-existing circumstances weakening the chain of circumstances relied on.” In Musili Tulo v. Republic [2014] KECA 412 (KLR), this Court stated as follows in relation to circumstantial evidence: “ We must now examine closely the chain of events that was relied on by the trial court to convict the appellant. As stated earlier, the chain must be so complete that it establishes the culpability of the appellant, and no one else, without any reasonable doubt. That is because circumstantial evidence is as good as any evidence if it is properly evaluated and, as is usually put, it can prove a case with the accuracy of mathematics. If there is a weak link in that chain, the whole chain must collapse.” 45. PW2-PW5 identified the appellant as the ‘uncle’ who twice picked the deceased from the Total Petrol Station. They separately testified that they had seen him previously on 4th September 2018. PW1 & PW9 corroborate this information. They saw him drop the deceased. Indeed, PW9 spoke to him. The appellant is said to have driven a Grey car. He does not deny that he picked up the deceased in his Grey car, a Mark II. PW2-PW5 saw the same person whom the deceased referred to as uncle at the same spot and with the exact vehicle. Though PW2 did not pinpoint him at the identification parade, she reasonably explained the reason to the court. She was able to identify him in court. PW20 placed the appellant's phone near where PW2-PW5 alleged he was. Indeed, the appellant confirmed that he was in a club in that locality. This, in our view, cannot just be a coincidence. We also do not see why three young children would implicate the appellant. 46. The evidence of the soil analyst PW17, was that the soil from exhibit MK5, black leather shoes picked from the appellant's house, matched the soil picked from the scene MK4, where the body of the deceased was found. Soil from another pair of shoes, picked from the appellant’s house, MK6, did not contain the same soil. Although learned counsel for the appellant contended that the soil at the home of the appellant, which was not analysed, could be similar to the soil from the scene where the body was found. This narrative is far-fetched. Indeed, if that were the case, the two pairs of shoes would have contained the components described by the witness. The similarity in the soil is too much of a coincidence. The only logical inference is that the owner of the shoe must have visited the scene where the body was found. 47. Equally, the phone data of 6th September 2018, placed the appellant near the Total Petrol Station at 4 p.m., where he is said to have picked the deceased from. PW10, in her desperate attempt to look for the deceased, called the appellant, having received information that he had dropped her off at home on the 4th of September, 2018 and had been seen calling the deceased on the fateful day. PW10 informed him of the deceased’s disappearance at about 5 p.m. as he headed home, and on the same day, his evidence is that he left for Nairobi on an alleged business trip. He alleged that PW10, did not allow him join her as she attempted to trace the deceased. However, there is evidence of PW9 that his message to the appellant about the deceased's disappearance was not answered. https://new.kenyalaw.org/akn/ke/judgment/keca/2025/2139/eng@2025-11-28 9

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PW10 in her testimony stated: “ … my house girl told me my daughter was dropped by the 1st accused on the 3rd and 4th. The girl told me to ask if I had enquired from Kimathi (1st accused). I had not known that he had dropped my girl on 3rd and 4th of September 2018. …I called Kimathi immediately, Grace told me, and he picked up my call. I inquired whether he had seen Marybel and he told me he had not seen her.” “At 6:00 p.m. I called Kimathi again he did not pick my calls. The call went through but he was not picking. He later called at around midnight same day and asked what I wanted and I told him its my daughter. He told me he was far.” 48. According to PW10, the appellant was nowhere as they searched for the deceased. He called her on the 9th September 2018, after his arrest, asking why she had reported that he had abducted the deceased. The appellant's attitude is perplexing. A man, who was so close to the deceased, was not bothered when he received news of her disappearance. Indeed, in his own words, he had given the deceased a lift on the 4th of September 2018, barely two days before she disappeared. Why would he not be bothered? The appellant’s attitude gave him away, coupled with the fact that he had picked the deceased once or twice before the fateful day without informing PW10, yet the two were not on good terms. 49. Further, there is evidence that the appellant was last seen with the deceased. The trial court believes the evidence of P2-PW5, so do we. They had no reason to implicate the appellant. Secondly, they described him so well, including his vehicle, that the police could easily identify him at a bar. Under the principle of ‘last seen’, it presumes such a person is responsible for the murder of the deceased and shifts the burden of proof. In this instance, the appellant failed to explain what could have happened to the deceased. He flatly denied having picked her. In Haruna v AG of Federation (2012) LPELR-SC.72/2010, (Pp. 30-31, paras. F-B) The Supreme Court of Nigeria held that: “ The doctrine of “last seen” means that the law presumes that the person last seen with a deceased bears full responsibility for his death. Thus where an accused person was the last person to be seen in the company of the deceased and circumstantial evidence is overwhelming and leads to no other conclusion, there is no room for acquittal. It is the duty of the appellant to give an explanation relating to how the deceased met her death in such circumstance. In the absence of a satisfactory explanation, a trial court and an appellate court will be justified in drawing the inference that the accused person killed the deceased.” Similarly, in Moingo & Another v Republic (Criminal Appeal No. 90 of 2018) [2022] KECA 6, this Court addressed the application of the “last seen with” doctrine in the following terms: “ The fact that the deceased was last seen in the hands and restraint of the appellants, a prima facie case was established to require the appellants to give a reasonable explanation as to what befell him. Even though the onus of proof in criminal cases always rests squarely on the prosecution at all times, the Last Seen doctrine in the prosecution of murder or culpable homicide cases is that, where the deceased was last seen with the accused, there is a duty placed on the accused to give an explanation relating to how the deceased met his/or her death. In the absence of any explanation, the court is justified in drawing an inference that https://new.kenyalaw.org/akn/ke/judgment/keca/2025/2139/eng@2025-11-28 10

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the accused killed the deceased (see the Nigerian case of Moses Jua v the State [2007] PELRCA/11 42/2006).” 50. On whether malice aforethought was proved, we are of the view that the motive of the murder, can be traced on two fronts: the bitterness the appellant harbored towards PW10 which was evident in the exchanged messages between the two just before the deceased disappeared, where the appellant blamed PW10 for betraying him, feeling that she had jilted him for the man he found in her house. Secondly, the vicious manner in which the deceased met her death. The killing was so gruesome that one does not need to look for the malice elsewhere, the injuries inflicted on the poor soul spoke to the malice; blunt face injury, fracture of the knee joint, fracture of the sternum (chest bone, and multiple fractures of the scalp among others). The vicious attack was meant to kill. The attack squarely fits the description of malice aforethought described in section 206 of the Penal Code as follows: “ Malice aforethought shall be deemed to be established by evidence proving any one or more of the following circumstances— 51. a. an intention to cause the death of or to do grievous harm to any person, whether that person is the person actually killed or not; 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." Evidently, the chain of events described above, taken cumulatively, lead to no other hypothesis but to draw an inference that the appellant angered and feeling that the deceased’s mother had jilted him, was out for a revenge mission; he planned the kidnapping of the deceased for some time which explains why he picked her once or twice before the day she disappeared and thereafter executed a murder so cruel on the innocent child. With the analysis above we concur with the findings of the trial court. 52. We equally find the sentence meted out to be within the law and was appropriate in the circumstances of the case, where a young innocent child needlessly lost her life in a grisliest manner. We see no reason to interfere with the same. We find the appeal totally devoid of merit and dismiss it in its entirety. DATED AND DELIVERED AT NYERI THIS 28TH DAY OF NOVEMBER, 2025. W. KARANJA ......................................... JUDGE OF APPEAL J. LESIIT ......................................... JUDGE OF APPEAL ALI-ARONI ......................................... JUDGE OF APPEAL https://new.kenyalaw.org/akn/ke/judgment/keca/2025/2139/eng@2025-11-28 11

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I certify that this is a true copy of the original. Signed DEPUTY REGISTRAR https://new.kenyalaw.org/akn/ke/judgment/keca/2025/2139/eng@2025-11-28 12

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