Republic v Elijah Kaburu Mutahi & 1 other

7. Post mortem examination was done by PW4 after the body was identified by PW4. 8. In his defence the 1st accused testified that on the 28th day of January, 2013, while in the company of the Deceased and the 2nd accused they proceeded to Gathangu Market by means of a bodaboda. 9. They entered in a bar belonging to Michuki. The deceased had no injuries at the time. The first accused left the bar at around 10.00 p.m. 10. The deceased was later found dead the following day on 29/1/2013. There were allegations that the deceased had stolen items from the owner of the bar they were drinking in. The deceased and accused no. 1 had been given a ride by accused no. 2 in his bodaboda. He denied having beaten or seen anyone beat the deceased. He also denied having been paid by the Bar owner to kill the deceased. 11. The 2nd accused informed the court that he was a bodaboda rider and that on the 28th day of July, 2013 he gave a ride to the deceased and 1st accused from Karatina to Gathumu village to a bar called “Celebration bar” operated by one Gichuki who it was said was alleging that the deceased had stolen items from the bar. 12. The accused maintained that his only role was that of bodaboda rider and was not privy to any beatings administered on the deceased. Prosecution’s Submissions 13. The prosecution places reliance on the court of appeal case of Joseph Kimani Njau –Vs- Republic (2014) eKLR where it was held:- “In all criminal trials both the actus, reus and mensrea are required for the ofience charged. They must be proved by the prosecution beyond reasonable doubt. The trial court is under a duty to ensure that before any conviction is entered, both actus reus and mens rea have been proved to the required standards” 14. In the court of appeal case of Anthony Ndegwa Ngari –Vs- Republic (2014) eKLR it was held:- “for the ofience of murder there are three elements which the prosecution must prove beyond reasonable doubt in order to secure a conviction. They are:a. The death of the deceased and the cause of that death. b. That the accused committed, the unlawful act which caused the death of the deceased. c. That the accused had the malice aforethought. 15. In the present case the prosecution does not deny that there is no direct evidence to link the two accused persons to the murder of the deceased. The prosecution relies on circumstantial evidence. 16. It relies on the court of appeal case of Abanga alias Onyango –Vs- Republic appeal no. 32 of 1990 where it was held:- “It is settled law that when a case rests entirely on circumstantial evidence, such evidence must satisfy three tests:i. “The circumstances from which an inference of guilt is sought to be drawn must be cogently and firmly established. ii. Those circumstances should be of a definite tendency un erringly pointing towards guilt of the accused, https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/3055/eng@2025-03-18 2

page 2 of 4

iii. The circumstances taken cumulatively should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else” 17. The deceased mother testified in court as PW1. She informed the court that she was informed by one Peris Wairimu that her son (the deceased) was being beaten at Gathangu Trading Centre. She proceeded to a bar called “Celebration Pub” operated by one Robert Gichuki. She found her son seated there. There were allegations that the deceased had stolen items in that bar. While there the 1st accused arrived in a motor bike and in the company of 2nd accused they took the deceased away. The following day the body of the deceases was found near Robert Gichuki’s bar. 18. The submissions by the prosecution is that the accused persons were the last ones to be seen with the deceased when he was alive. There are several glaring gaps in the prosecution case. 19. The main one hinges on the allegations that the deceased was alleged to have stolen items belonging to one Robert Gichuki, the proprietor of the bar called “Celebration bar” The mother of the deceased had testified that she went to the said bar and found her son there. It had been alleged that he had stolen some items therefrom. It is apparent that the person who could have the motive to punish the deceased from stealing from his place was Robert Gichuki, the owner of the premises where the body of the deceased was later found. 20. It is not clear what happened to this Robert. If he was investigated what happened to the investigations. He does not appear to have been treated as a witness for the prosecution. It is not disputed that the deceased did sustain fatal injuries on his body. The prosecution has not made it clear as to whether he sustained those injuries while at Robert Gichuki’s bar or elsewhere. 21. PW1 had received information that her son was being beaten at “Celebration bar”. A bar is a public place. How come that there were no eye witnesses to the said beating if it happened in the bar. 22. The allegations against the two accused persons is that they were seen riding together with the deceased. There is conflicting evidence as to whether the deceased had already been assaulted or it was before he was assaulted. 23. Owing to the above stated glaring gaps in the prosecution case, I find that the evidence against the accused persons does not irresistibly point to their guilt. The circumstantial evidence is so weak so as to sustain a finding of guilt. 24. The prosecution has not proved its case beyong a reasonable doubt against the accused persons. Theya re found not guilty and are acquitted of the ofience of murder contrary to Section 203 as read with Section 204 of the Penal Code. JUDGMENT READ AND DELIVERED IN OPEN COURT THIS 18TH DAY OF MARCH, 2025. .............................. M. MUYA JUDGE In the presence of:Miss Magua for the 2nd Accused Lucy Mwai for the 1st Accused https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/3055/eng@2025-03-18 3

page 3 of 4

Ms. Kaniu for Prosecution https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/3055/eng@2025-03-18 4

page 4 of 4